ABBYY FlexiCapture Cloud Service Agreement
ABBYY will provide You with the Service subject to the terms of this ABBYY FlexiCapture Cloud Service Agreement (the “Agreement”). By using the Service, You agree to be bound by this Agreement and use the Service in compliance with this Agreement.
CAREFULLY READ THIS AGREEMENT BEFORE ACCEPTING IT. BY CLICKING THE BOX INDICATING YOUR ACCEPTANCE OF THE AGREEMENT, BY EXECUTING A SIGNUP FORM THAT REFERENCES THIS AGREEMENT OR BY USING THE SERVICE, YOU ARE AGREEING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, DO NOT CLICK ON THE ACCEPT BOX AND DO NOT USE THE SERVICE.
- 1.1. “ABBYY” means ABBYY PTY LTD., a company duly incorporated under the laws of Australia having its registered office at suite 502 level 5, 140 Bourke Street, Melbourne VIC 3000.
1.2. “Account” means a collection of data associated with a particular Authorized User of the Service. Each Account comprises a User Name and User password, and defines various settings for use of Service. An Account is a sub-entity of a Tenant.
1.3. “Administration & Monitoring Station” is a web component allowing You to manage the settings and see statistics for Your Tenant.
1.4. “Authorized Users” means individuals who are authorized by You to use the Service, and who have been supplied Account user name and user password by You (or by ABBYY or by a Partner at Your request). Authorized Users may include Your employees, consultants, contractors, agents, and/or a Partner.
1.5. “Data Protection Laws” means all applicable local, state, national, and foreign data protection, data privacy, electronic communications and data security laws, treaties, or regulations.
1.6. “Intellectual Property Rights” means all rights of any nature in patents, registered designs, registered trade marks and service marks, and all extensions and renewals thereof, unregistered trade marks and service marks, business and company names, unregistered designs, internet domain names and email addresses, design rights, topography rights, rights in inventions, utility models, database rights, know-how and copyrights (including moral rights); applications for any of the foregoing and the right to apply for any of the foregoing in any country; rights under licenses, consents, orders, statutes or otherwise in relation to the foregoing; rights of the same or similar effect or nature which now subsist; and the right to sue for past and future infringements of any of the foregoing rights.
1.7. “Partner” means an entity or individual who is authorized by ABBYY to market, promote or re-sell Service on behalf of ABBYY.
1.8. “Project” means a specific set of files that contain settings for importing, processing, and exporting documents that may be uploaded to the Service.
1.9. “Service” means "ABBYY FlexiCapture Cloud" Web-service accessible via https://australia.flexicapture.com and all of ABBYY's proprietary technology (including software, hardware, Services, processes, algorithms, user interfaces, know-how, techniques, designs, and other tangible or intangible technical material or information) made available to You by ABBYY as part of the Service, as well as ancillary online or offline services, audio, visual and text information.
1.10. “Service Fees” means the fees (as specified in each invoice or otherwise) payable by You to ABBYY for use of the Service.
1.11. “Service Marketing Materials” means picture samples, demo samples, user’s guides, notification texts and other marketing materials made available to You through https://flexicapture.com/ and https://www.abbyy.com/, Your personal Administration & Monitoring Station or through e-mail in connection with using the Service.
1.12. “Service Storage” means the software and hardware used by ABBYY for Your Data storage.
1.13. “Tenant” means a group of Authorized Users sharing the common sub-system dedicated to You with its specific documents, data, Projects, and processing rules. The Service is a multitenant environment.
1.14. “You” or “Your” means any person and/or any entity that has accepted this Agreement and/or uses the Service.
1.15. “Your Data” means any data, information, or material (including but not limited to any images, scanned documents or photos) provided or submitted by You or Authorized Users to the Service in the course of using the Service, or automatically collected about Authorized Users.
1.16. “Uploaded Data” means any data, information, or material uploaded by You or Authorized Users to the Service Storage in the course of using the Service. Uploaded Data is a subset of Your Data.
2. Service Scope
- 2.1. Scope. In consideration of the Service Fees paid and subject to the terms and conditions of this Agreement, ABBYY grants to You a limited, non-exclusive, revocable, non-transferable, royalty-bearing right to use the Service. All rights granted hereunder by ABBYY are revocable in accordance with this Agreement. All rights not expressly and unambiguously granted herein are reserved by ABBYY.
2.2. Feature Modification. ABBYY FlexiCapture Cloud is an evolving service. ABBYY may add additional features to the Service, remove features, or modify the design of existing features. Any such addition, removal or modification may be done without notice.
2.3. Limits. ABBYY may impose reasonable limits on Your use of the Service including but not limited to maximum Document size, peak Document rates, and connection timeouts in order to ensure the efficient and stable operation of the Service.
2.4. Resources. Except as specified in the Agreement, ABBYY will determine in its sole and reasonable discretion the appropriate ABBYY resources to be used in providing the Service, on an as-available basis. ABBYY sometimes utilizes the services or products of a limited number of third parties, whether companies or individual subcontractors as well as ABBYY affiliates (“Approved Contractors”) which have been determined by it to meet its standards. In order to most effectively meet Your needs, ABBYY may assign or subcontract all or part of ABBYY’s performance obligations and rights towards the provision of any portion of the Service under this Agreement to an Approved Contractor.
2.5. No right to sublicense. ABBYY does not grant You the right to sublicense or resell the Service.
2.6. Service Users. ABBYY will make the Service available to You and Authorized Users for access and use by Authorized Users solely for Your internal business purposes, except as otherwise provided in a separate Agreement with ABBYY. You are responsible for use of the Service by Authorized Users and any party who accesses the Service with Your or such Authorized User’s Account credentials. You shall solely be responsible for access and use policy with regard to Your use of the Services in accordance with the applicable laws.
2.7. You and/or Your Authorized Users on behalf of You shall register to use the Service and provide certain information about Yourself and/or the Authorized Users in order to start using the Service. Registration for the Service is free of charge.
2.8. No title. You acknowledge and agree that nothing herein transfers or conveys to You any right, title, or interest to any Intellectual Property Rights in or to Service and any part thereof or copy thereof. No title to any Intellectual Property Rights is transferred to You unless otherwise provided for in Section 2. You shall further at no time dispute the validity of ABBYY’s right, title, or interest to any Intellectual Property Rights in or to Service and any part thereof or copy thereof or assert the right to use the intellectual property rights in the Services in any jurisdiction otherwise than as permitted by this Agreement.
3. General Obligations
- 3.1. General Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, You will not, and will not permit or authorize third parties, directly or indirectly, to:
- (a) circumvent or disable any technical features or measures in Service;
- (b) attempt a denial-of-service attack (DoS) or distributed denial-of-service (DDoS) attack;
- (c) use the Service for CAPTCHA breaking;
- (d) use the Service in any way not listed in the online documentation. You acknowledge and agree that ABBYY may unilaterally change the terms set forth in this Section 3.1(e) of the Agreement and related to online documentation. The latest version of the online documentation is available at https://www.abbyy.com/en-eu/support/flexicapture/12/pl/sr/;
- (e) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Service or any software, documentation or data related to or provided with the Service unless such acts are expressly permitted under the applicable laws;
- (f) misuse the Services by knowingly introducing viruses, Trojans, worms, logic bombs or other material which is malicious or technologically harmful.
3.2. Service Marketing Materials Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, You will not, and will not permit or authorize third parties to:
- (a) reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works based on Service Marketing Materials, except with prior written approval from ABBYY unless such acts are expressly permitted under the applicable laws;
- (b) use Service Marketing Materials for any purpose other than to make effective use of the Service.
3.3. Actions by Authorized Users. You shall be liable for any actions taken by an Authorized User and are obligated to take appropriate measures to ensure that an Authorized User only adds or removes subscriptions to Service, makes payments or requests Service functionality, with Your prior consent. You are solely responsible for all activity by Authorized Users, and will abide by all applicable local, state, national, and foreign laws, treaties, and regulations in connection with Your use of the Service. In no event will ABBYY be responsible or liable for any damages, fines, taxes, or other consequences of misuse or abuse of Authorized Users. You are solely responsible for the security of Authorized User account information, including the storage of user names, passwords, and other secret information if applicable, and the choice of strong passwords. ABBYY may from time to time impose, but is not obligated to impose, password and other secret information management policies that You agree to comply with, included but not limited to minimum password strength and maximum password lifetime.
3.4. Unauthorized Use. You shall: (a) immediately notify ABBYY of any unauthorized use of any password or other secret account information or any other known or suspected breach of security related to the Service; (b) report to ABBYY immediately and use best efforts to immediately stop any unauthorized use, copying or distribution of any part of the Service; and (c) not impersonate another user or provide false identity information to gain access to the Service.
3.5. Data. You are solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, intellectual property ownership, and right to use for all of Your Data and any data sent by You in requests to Service. You will abide by and will be solely responsible for any breach of applicable local, state, national, and foreign law, treaty, or regulation in connection with Your Data, including those related to data privacy, international communications, and the transmission or technical or personal data.
3.6. To perform the obligations under this Agreement in an efficient manner, ABBYY may need to process and store Your Data. You hereby shall provide to ABBYY, in compliance with the Data Protection Laws, certain information that is reasonably required by ABBYY in the provision of the Service, including but not limited to the name, surname, and e-mail address of You, of Your relevant personnel and of the Authorized Users, and information on when, how and how much of the Service functionality You use. You hereby authorize ABBYY and/or ABBYY affiliate to process this subset of Your Data (including but not limited to collect, systematize, store for unlimited time, update, modify, use, distribute, transfer, depersonalize, lock, delete) for the purpose of providing You with the Service, sending You e-mail messages with information related to ABBYY’s activities. ABBYY guarantees that the data You provide will not be disclosed by ABBYY to any third parties except Approved Contractors or as expressly required or permitted by law and/or is necessary for the performance of this Agreement.
3.7. You hereby authorize ABBYY to send Your designated personnel who have expressly consented to You to receive e-mail messages about ABBYY’s product and company news, special offers, products usage advices and other information related to ABBYY’s activities.
3.8. You shall also receive from ABBYY e-mail messages with critical information related to the Service operation (password-related e-mails, service notifications, etc.).
3.9. You agree that You are solely responsible for any breach of laws, treaties, or regulations in connection with any Uploaded Data, including personal or confidential data, and shall defend, indemnify and hold ABBYY harmless from and against any and all claims, actions, proceedings, expenses, liabilities, damages, losses, costs, and expenses, including attorneys’ fees, associated with and/or arising from such Uploaded Data. If Uploaded Data processing causes Service failure or leads to the abnormal consumption of computing resources, or leads to other exceptional cases connected with functionality of Service, You consent to ABBYY’s use of such Uploaded Data for the sole purpose of improving the quality of the Service.
3.10. Except as otherwise provided herein, ABBYY will not access, review, use, publish, reproduce or disclose any of Your Uploaded data.
3.11. Location of Servers. ABBYY, alone, has the right and sole discretion, to determine the geographic location of the Service’s servers . In this regard, or for purposes of sharing or disclosing, ABBYY reserves the right to transfer Your Data outside of Your country. By using the Services, You consent to any such transfer of data outside of Your country for the purpose of enabling You to use the Service.
3.12. You hereby acknowledge and agree that Your Data will be processed by ABBYY PTY LTD, a company duly incorporated under the laws of Australia having its registered office at suite 502 level 5, 140 Bourke Street, Melbourne VIC 3000. The terms and conditions of processing and storage of Your Data are specified in the Data Processing Addendum (“DPA”) to this Agreement. In the event of a conflict between any provision in the DPA and any provision in the Agreement or any supplements to the Agreement, the DPA shall control and govern.
- 4.1. To the extent that a deposit or prepayment amount must be paid before providing any portion of the Service, ABBYY’s obligations under this Agreement are conditional upon its receipt of such deposit or prepayment amount. All Service Fees are non-cancellable and are non-refundable, except as otherwise provided for herein and unless cancellable or refundable under the applicable laws.
4.2. ABBYY may change the prices and payment procedure at any time, by giving notice thereof to You or by amending this Agreement otherwise. Such revised prices and payment terms will be binding on You immediately for all subsequent purchases.
5. Terms of Payment
- 5.1. ABBYY will send You an invoice for Service Fees, which are due for payment. You shall make the payment in accordance with the terms of the invoice by means of electronic transfer within thirty (30) days following the invoice receipt, unless otherwise specified on ABBYY's invoice sent to You.
5.2. All outgoing bank transfer charges are to be paid by You.
5.3. Without ABBYY’s prior written consent, You may not set off payment of the Service Fees with any and all amounts ABBYY may owe to You.
5.4. All of Your payment obligations to ABBYY shall be deemed fulfilled when the sums due are credited to ABBYY's bank account.
5.5. If You purchased the Service directly from a Partner then Partner’s terms of payment shall apply.
- 6.1. You acknowledge that any written or oral information disclosed by ABBYY in relation to the Service, Administration & Monitoring Station and Service Storage is confidential information (hereinafter, “Confidential Information”).
6.2. You agree to maintain confidentiality of the Confidential Information and not to use or disclose such Confidential Information for five (5) years after the Effective Date except in the course of the performance of this Agreement.
6.3. You shall ensure that Your employees, agents and sub-contractors to whom Confidential Information of ABBYY is disclosed or who have access to Confidential Information of ABBYY sign a nondisclosure or similar agreement in content substantially similar to the confidentiality provisions of this Agreement. You agree that it will take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized under this Agreement to have any such information. Such measures shall include, but not be limited to, the highest degree of care that You utilize to protect Your own Confidential Information of a similar nature. You agree to notify ABBYY in writing of any misuse or misappropriation of Confidential Information.
6.4. Residual Information. It is important for ABBYY to be able to use its skills, experience, expertise, concepts, ideas, and know-how learned or acquired while providing the Service for You, itself or any of its clients in the ordinary course of its business. Therefore, You agree that ABBYY is entitled to retain and use without restriction any of the generalized knowledge, techniques, methodologies, practices, processes, skills, experience, expertise, concepts, ideas, and know-how learned or acquired by ABBYY’s personnel in the course of providing the Service for You hereunder solely to the extent that they are retained in intangible form in the unaided memory of the personnel of ABBYY without intentionally memorizing such information or using any Your Confidential Information to refresh its recollection (“Residual Information”). Nothing in this Agreement is to be construed as to prevent ABBYY from being able to do so, and further, such retention and use of Residual Information shall not be construed as a breach of this Agreement.
7. Your Liability
- You shall compensate ABBYY in full for any damage caused by You breaching one or more of Your obligations under the Agreement, including but not limited to any damage caused by third parties who may have received access to the Service as a result of Your breach.
8. Technical Support
8.2. Error means a defect in the Service, which leads to an abnormal termination of the Service execution.
8.3. Technical Support is the service rendered by ABBYY to users of the Service regarding possible Errors as well as for solving any problems with access and/or activation of the Service. Technical Support does not include assistant or support for errors, deficiencies, or malfunctions related to a Project.
8.4. If You purchased the Service directly from ABBYY (i.e. not from a Partner) then ABBYY’s Technical Support will be provided free of charge to Your engineers. Your engineers may submit a request to ABBYY via web form https://support.abbyy.com/hc/en-us/requests/new. Technical Support will be available in English.
8.5. If You purchased the Service directly from a Partner then ABBYY’s Technical Support will be provided directly to the Partner and all Your support requests should be directed to the Partner.
8.6. ABBYY offers Professional Consulting Services, which You may purchase on an hourly basis. Such services are not included as part of this Agreement.
8.7. ABBYY agrees to make commercially reasonable efforts to take appropriate corrective actions in response to reported Errors report so long as You provide sufficient information in order for ABBYY to replicate the Error.
8.8. ABBYY will not provide any technical support to any third party except You.
- 9.1. Term. This Agreement is effective upon the date You (whichever occurs earlier) you accept this Agreement or begin using the Service (whichever occurs earlier), and will continue in effect for as You use the Service or until terminated in accordance this section 9.
9.2. Without prejudice to ABBYY's other rights and remedies under the Agreement and/or the applicable law, ABBYY has the right to revoke Services, suspend the performance and/or terminate all or any of its obligations and Your rights under the Agreement immediately at any time by giving notice in writing to You if any of the following applies:
- 9.2.1. You have open invoices and are not paying as required in Sections 4 and 5 hereof despite a prior written notice declaring the default of payment.
- 9.2.2. You breach Sections 2, 3, 5, 6 and/or Section 12 of the Agreement;
- 9.2.3. You become bankrupt or insolvent, or suffer any similar action in consequence of indebtedness or goes into voluntary or compulsory liquidation;
- 9.2.4. You dispute or contest, directly or indirectly, the validity, ownership or enforceability of any Intellectual Property Right of ABBYY or its affiliates or its licensors, or counsels, procures or assists any other person to do so, such without prejudice to ABBYY's other rights and remedies under the applicable law or the Agreement.
9.3. Either party may terminate the Agreement if the other party violates any material provision of the Agreement and if such violation is not cured within thirty (30) days from the date of written notice from the non-violating party advising of that violation.
9.4. Termination of the Service. When You or Authorized Users on behalf of You act (Your use of Service) in a bad faith or its actions may harm ABBYY, Service infrastructure, the Service itself or third parties ABBYY may deactivate Your or Authorized Users Account or the Tenant in general and remove all Your Data and Uploaded Data or may stop the Service without any written notice in case of including but not limited to the breach of this Agreement by You. In case of deactivation or stopping by ABBYY’s fault payments for non-used volume of the Service will be refunded.
9.5. You may contact ABBYY by e-mail at email@example.com to deactivate Your login (Account) and cease Your use of the Service at any time.
9.6. Change of Control. ABBYY may terminate this Agreement immediately if You are subject to a change of Control and it is no longer reasonable to expect ABBYY to adhere to the Agreement due to the change of control. ABBYY shall not unreasonably delay negotiations for a new Service Agreement with the anticipated owner of Your company. Written requests for a new Service Agreement from the new anticipated owner of Your company should be answered not later than within 4 (four) weeks from the date of receipt of the request.
10. Consequences of Termination
- 10.1. Upon termination of the Agreement, all the rights granted to You thereunder will immediately terminate.
10.2. The expiry or earlier termination of the Agreement shall not have any effect on its provisions, which are expressed to operate or to be in force after termination, or any right of action already accrued to ABBYY in respect of any breach by You.
10.3. The following provisions will survive any expiration or termination of this Agreement: Sections 4, 5, 6, 11, 13 and 14.
10.4. Refunds. Upon termination of the Agreement, all payments made in accordance with Section 4 and 5 are deemed non-refundable.
10.5. Upon termination of the Agreement, You shall be required to return (or with ABBYY’s consent destroy and certify such destruction in writing) all copies of ABBYY’s Intellectual Property or/and ABBYY’s Confidential Information provided in connection with this Agreement. Upon completion of the Agreement term, all Your or Authorized Users’ rights to access and use the Service will terminate and ABBYY will irretrievably delete and destroy Your Data, with the only exception of Your Data that has to be retained by law (e.g. financial information) and other information about You that could be necessary for the performance of ABBYY’s obligations after the date of termination or expiration hereof. In any case, ABBYY will, if reasonably possible, inform You in advance and give You the opportunity to export Your data from the Service. The termination or expiration of the Agreement shall not itself give rise to any right for You to receive or demand any compensation for goodwill, Authorized Users expenses or any other payment of any nature from ABBYY and/or its affiliates, subcontractors and service providers.
11. Copyrights and Trademarks
- 11.1. All product names are the trademarks or registered trademarks of their respective owners.
11.2. Rights in the Service. ABBYY, its affiliates or associated companies own all right, title, and interest, including all related intellectual property rights, in and to the Service, Service Marketing Materials, and any feedback provided by You or any other party relating to the Service, Service Marketing Materials. All ABBYY trademarks are the intellectual property of ABBYY, its affiliates or associated companies and are provided only for reference. ABBYY does not grant to You a license to use these trademarks.
11.3. Use of Your company Names. ABBYY may identify You in its advertising and marketing materials as a customer of the Service, and may use Your trademarks, trade names, service marks, and logos in such materials subject to Your reasonable guidelines. Furthermore, ABBYY may disclose some or all of the Service features that You are using.
12. Limited Warranty and Disclaimers
- 12.1. Limited Warranties. Each party represents and warrants to the other that the execution, delivery, and performance of this Agreement does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
12.2. Internet Delays. ABBYY shall not provide You or Authorized Users with an Internet connection or with any hardware and software required to connect to the Internet, and ABBYY is not liable for the quality of Your or Authorized Users’ Internet connection or the quality of the hardware and software that You or Authorized Users use to access the Internet. ABBYY is not liable for any malfunction or other problems in telephone networks or services, computer systems, servers, providers, computer hardware, software, or telecoms equipment, or for any malfunction in the operation of e-mail and scripts, howsoever caused, or other damage resulting from such problems. ABBYY shall not be liable for any delay, malfunction, missed or late delivery, removal or loss of any of Your Data.
12.3. Loss of information. You acknowledge that You will be transmitting information over a public computer network and that ABBYY shall not be liable for any loss of information transmitted in this manner.
12.4. No warranties for third party software products. ABBYY makes no warranties for any third party software products, which may be included into the Service.
12.5. Warranty disclaimer. Except for the express representations and warranties stated in this Section, ABBYY makes no representation, warranty, or guaranty as to the reliability, timeliness, quality, suitability, truth, availability, accuracy, or completeness of the Service or any data. ABBYY does not represent or warrant that:
- (a) the use of the Service will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, software, system, or data,
- (b) the Service will meet Your requirements or expectations,
- (c) any stored data will be accurate or reliable,
- (d) the results obtained by using the Service are accurate, complete or useful,
- (e) the operation of the Service or the provision and availability of the Service will be continuous and/or uninterrupted or free from error,
- (f) the quality of any products, services, information, or other material purchased or obtained by You through the Service will meet Your requirements or expectations,
- (g) errors or defects will be corrected, or
- (h) the Service or the server(s) that make the Service available are free of viruses or other harmful components.
12.6. AS IS. The Service and all data are provided to You strictly on an "AS IS" basis. All conditions, representations and warranties, whether express, implied, statutory, or otherwise, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, or non-infringement of third party rights, are hereby disclaimed to the maximum extent permitted by applicable law by ABBYY and ABBYY’s licensors.
12.7. Service Level. Service level availability are solely specified by ABBYY and accessible via https://www.abbyy.com/flexicapture/cloud-sla/. - You hereby irrevocably consent that the additional terms and conditions with relation to technical support and Service level availability (i) shall be applied to this Agreement and (ii) might unilaterally be amended or changed by ABBYY, and (iii) shall be accessible via https://www.abbyy.com/flexicapture/cloud-sla/. In the event that the Service Level is not met or less than 99%, ABBYY will calculate the period of time when the Service is not available to You due to reported incidents based on Incidents duration and ABBYY will credit You with corresponding number of pages.
12.8. ABBYY, at its sole discretion, may provide a partial refund or provide additional page volume if the guaranteed Service Level according to Article 12.7 is not met.
- 12.8.1. In order to be eligible for such compensation, You have to submit a Claim to ABBYY firstname.lastname@example.org not later than 10 (ten) calendar days after the end of affected calendar quarter.
- 12.8.2. You must provide to ABBYY all reasonable details regarding the Claim, including, but not limited to, detailed descriptions of the Incident(s), the duration of the Incident, network trace routes, the URL(s) affected and any attempts made by You to resolve the Incident.
- 12.8.3. In order to be eligible to submit a Claim with respect to any Incident, You must first have notified ABBYY of the Incident within 24 (twenty-four) hours after Incident started
- 12.8.4. ABBYY will use all information reasonably available to it to validate Claims and make a good faith judgment on whether the Service Level guarantee applies to the Claim.
- 12.8.5. In the event Service Level is not met, ABBYY will calculate amount of pages that were not processed in time due to reported Incidents based on Incidents duration and average processing speed by You. ABBYY will choose at its own discretion either to credit You with this amount of pages, or deduct this amount from next billing period, or refund You for their monetary equivalent as defined in this Agreement.
13. Limitation of Liability and Indemnification.
- 13.1. Limitation of Liability. EXCEPT AS EXPRESSLY PROVIDED HEREIN, ABBYY MAKES NO OTHER WARRANTIES OR GUARANTEES, EITHER EXPRESSED OR IMPLIED, REGARDING THE SERVICE, ITS MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE.
13.2. IN NO CASE SHALL ABBYY BE LIABLE FOR CONSEQUENTIAL OR SPECIAL DAMAGES (INCLUDING THE LOSS OF PROFITS) WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY.
13.3. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ABBYY’S TOTAL AND CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL FEES PAID BY YOU UNDER THIS AGREEMENT FOR THE SERVICE, IN EITHER CASE EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13.4. THESE LIMITATIONS SHALL APPLY DESPITE THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PROVISIONS OF THIS SECTION 13 ALLOCATE RISKS UNDER THIS AGREEMENT BETWEEN ABBYY AND YOU. ABBYY’S PRICING REFLECTS THIS ALLOCATION OF RISKS AND LIMITATION OF LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THIS LIMIT ON LIABILITY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT AND THAT ABBYY WOULD NOT BE ABLE TO PROVIDE THE SERVICES WITHOUT SUCH LIMITS. THIS SECTION SHALL NOT BE SUBJECT TO ANY DISCLAIMER OR PROVISION SET FORTH IN THE AGREEMENT.
13.5. Defense of Claims. You shall indemnify, defend, and hold harmless ABBYY and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, an "ABBYY Indemnitee") from and against any and all third-party claims, injuries, judgments, damages, liabilities, losses, costs and expenses, including, without limitation, reasonable attorneys' fees, court costs and other legal expenses (collectively, "Losses") incurred by any ABBYY Indemnitee that arise out of or result from, or are alleged to arise out of or result from:
- a) Your Data, including any Processing of Customer Data by or on behalf of ABBYY in accordance with this Agreement;
- b) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on Your behalf or any Authorized User, including ABBYY's compliance with any specifications or directions provided by or on behalf of You or any Authorized User to the extent prepared without any contribution by ABBYY;
- c) allegation of facts that, if true, would constitute Your breach of any of Your representations, warranties, covenants, or obligations under this Agreement; or
- d) negligence or more culpable act or omission (including recklessness or willful misconduct) by You, any Authorized User, or any third party on Your behalf or any Authorized User, in connection with this Agreement.
13.6. You will indemnify any ABBYY Indemnitee against
- (a) all damages, costs, and attorney fees finally awarded against ABBYY or an ABBYY Indemnitee in any proceeding under Section 13.5;
- (b) all out-of-pocket costs (including reasonable attorney fees) reasonably incurred by ABBYY or an ABBYY Indemnitee in connection with the defense of such proceeding (other than attorney fees and costs incurred without Your consent after You have accepted defense of such claim); and
- (c) if any proceeding or claim arising under Section 13.5 is settled between You and the third-party, You will pay all amounts agreed to by You as part of such settlement and You shall not enter into any settlement without the written consent of ABBYY.
14. Miscellaneous Provisions
- 14.1. Assignment. ABBYY may transfer its rights and obligations hereunder (or any part thereof) to a third party at any time without notice or Your consent.
14.2. Dispute Resolution. The following procedure shall be observed to resolve any dispute arising between You and ABBYY out of the use of the Service. If You have reasons to believe that Your rights and interests have been violated in connection with the use of the Service, You may send a complaint to ABBYY at FC_cloud@abbyy.com. ABBYY shall respond to the complaint within twenty (20) business days of receipt of the complaint. The response shall be sent to Your e-mail address as indicated in the complaint. If the parties fail to resolve the dispute in this manner, the dispute shall be resolved in accordance with the terms of this Agreement. ABBYY shall not respond to anonymous complaints or complaints from users who cannot be identified with the data they provided to register.
14.3. Waiver. The failure of either party to enforce compliance with any provision of this Agreement shall not constitute a waiver of such provision unless accompanied by a clear written statement that such provision is waived. A waiver of any default hereunder or any of the terms and conditions of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition, but shall apply solely to the instance to which such waiver is directed. Except as expressly provided herein to the contrary, the exercise of any right or remedy provided in this Agreement shall be without prejudice to the right to exercise any other right or remedy provided by law or equity.
14.4. Severability. If any part of this Agreement is found to be or should become illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the grant of any rights to You under this Agreement is found to be illegal, unenforceable, or invalid, the right granted will immediately terminate.
14.5. Interpretation. The headings appearing at the beginning of several Sections contained in this Agreement have been inserted for identification and reference purposes only and must not be used to construe or interpret this Agreement.
14.6. No partnership or agency. Nothing in this Agreement or any circumstances associated with it or its performance give rise to any relationship of agency or partnership between the You and ABBYY.
14.7. Entire Agreement. This Agreement (along with any and all associated Appendices) is the final and complete expression of the agreement between these parties regarding the usage of the Service. This Agreement supersedes all previous oral and written communications regarding these matters, including any marketing materials or documentation provided by ABBYY prior to the execution of this Agreement, unless specifically referred to and incorporated in this Agreement. No employee, agent, or other representative of ABBYY has any authority to bind ABBYY with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement.
14.8. Contact Us. Should You have any questions concerning this Agreement, or if You desire to contact ABBYY for any reason, please contact Your ABBYY sales representative or Partner.
14.9. All of the terms and conditions stated in the Agreement apply both to the Service as a whole and to any of the Service’s separate parts.
14.10. You may not assign or transfer any of the rights or responsibilities set forth herein without the express written consent of ABBYY, and any purported attempt to do so shall be deemed void.
14.11. Any applicable custom duties, withholding taxes and other similar payments which may be levied or imposed on ABBYY by the authorities of Your country pursuant to the tax legislation or other convention or agreement between the countries of the parties hereto with respect to any of the amount payable to ABBYY, pursuant to this Agreement, shall be borne by You.
14.12. Any notices or communications required or permitted to be given by this Agreement must be (i) given in writing and (ii) personally delivered or mailed, by prepaid, certified mail or overnight courier, or transmitted by electronic mail transmission, to the party to whom such notice or communication is directed, to the mailing address or regularly-monitored electronic mail address of such party. Notice shall be deemed to have been given on the date that receipt of the electronic mail transmission is confirmed by recipient or if by post, on the date that the notice is delivered.
14.13. All the terms and periods herein are calculated as calendar, unless otherwise expressly specified. If the last day of the period happens to be a not-working day either in the country of ABBYY or in Your country, such a period shall terminate on the first following working day.
14.14. ABBYY may list and publish in different materials and/or in the Internet Your name and in an index of clients/products that use technology developed by ABBYY.
14.15. ABBYY may unilaterally change this Agreement at any moment in case: (a) changes are required to comply with the applicable law, applicable regulation, a court order or guidance issued by a regulator or agency; or (b) changes do not: (i) result in a violation of Your right; and (ii) otherwise have a material adverse impact on your rights under the Agreement, as reasonably determined by ABBYY. Before changes will take effect ABBYY informs you at least 30 days in advance (or shorter period as may be required to comply with the applicable law, applicable regulation, a court order or guidance issued by a regulator or agency) by either: (a) email; or (b) alerting you via the service interface. If you object to any such change, you must terminate the Agreement and stop using Service. ABBYY shall be entitled not to notify you about editorial changes.
14.16. Force Majeure. If the performance of the provisions of the Agreement or any obligation herein is prevented, restricted or interfered with by reason of circumstances beyond the reasonable control of the party obliged to perform it, the party so affected, upon giving prompt notice to the other party, shall not be liable for any delay or failure to perform the provisions of the Agreement or any obligations herein to the extent of such prevention, restriction or interference, but the party so affected shall use its best efforts to avoid or remove such causes of non-performance and shall resume the performance of the provisions and obligations as soon as possible after such causes are removed or diminished.
15. Law and Construction
- 15.1. This Agreement shall be governed by and construed in accordance with the laws of the State of New South Wales, Australia, without regard to or application of its conflicts of law principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
15.2. Any action or proceeding arising out of or relating to this Agreement shall be brought exclusively in a state or federal court of competent jurisdiction situated in New South Wales, Australia, and Licensee consents to the exclusive personal jurisdiction of such courts for such purpose.
Data Processing Addendum
This Addendum is incorporated into the ABBYY FlexiCapture Cloud Service Agreement (hereinafter ‘’Agreement’’) with regard to the processing of Customer Data pursuant to the provisions below. This DPA includes the provisions of this DPA and the Standard Contractual Clauses, with Appendices 1-2, in Annex 1.
Capitalized terms used but not defined in this DPA will have the meanings provided in the Agreement.
The following definitions are used in this DPA:
“Service Storage” means software and hardware used by ABBYY for Customer Data storage.
“Customer Data” means all data in an electronic form provided or submitted to ABBYY Service Storage in the context of using the Product and through the use of the Product by, or on behalf of, Customer (e.g., by Authorized Users or End Users). Such data may include but not limited to: first and last name, passport data and ID data; employer and employee data; contact information (e.g., email, phone, physical address); IP address and connection data, device identification data, billing and payment data; account history, settings and statistics, information on when, how and how much of the Product and its functionality are used; business network; business experience and business interests, localization and customization data, image and document recognition and conversion data.
“ABBYY” means the ABBYY legal entity that is a party to the Agreement and this DPA, which is ABBYY PTY LTD., a company incorporated and existing under the laws of Australia and having its principal place of business at ‘Citigroup Building’, Level 13, 2-26 Park Street, Sydney NSW 2000, Australia.
“Affiliates” means the same meaning ascribed to it in the Agreement.
“Customer” means the party to the Product Subscription Agreement (also referred to as “the Agreement”).
“Sub-processor” or “Subcontractor” means any Data Processor engaged by ABBYY.
“Data Protection Law” means any law, rule, regulation, decree, statute, or other enactment, order, mandate or resolution, applicable to Customer or ABBYY, relating to data security, data protection and/or privacy, including Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to processing of personal data and the free movement of that data (“GDPR”).
“Data Processor”, “Data Controller”, “Personal Data”, “Data Subject”, “Personal Data Breach”, “Supervisory Authority”, “Processing” shall have the same meaning as in the GDPR.
Roles of the Parties
The parties acknowledge and agree that with respect to the Processing of Personal Data, Customer is the Data Controller and ABBYY is the Data Processor.
- Privacy practices. ABBYY shall comply with applicable Data Protection Law generally applicable to ABBYY’s provision of the Product. However, ABBYY is not responsible for compliance with Data Protection Law applicable to Customer or its industry and not generally applicable to information technology service providers or providers using critical infrastructure (e.g. financial or credit institutions, health and safety institutions, professional unions or associations, religious organizations). Customer shall comply with its own obligations under applicable Data Protection Law including, but not limited to, its use of the Product and the transfer of Personal Data to ABBYY and any ABBYY Affiliate and Subcontractor.
Personal Data. ABBYY will process Personal Data in accordance with the provisions of this DPA and, except as stated in the Agreement and this DPA, ABBYY (1) will acquire no rights in Personal Data and (2) will not use or disclose Personal Data for any purpose other than stated below. Customer instructs ABBYY to Process Personal Data as follows:
(i) Personal Data will be used to provide the Product to Customer. This may include any Processing initiated by Customer in its use of the Product. This may also include troubleshooting or technical support and maintenance aimed at preventing, detecting and repairing problems affecting the operation of the Product and the improvement of features that involve the detection of, and protection against, emerging and evolving threats to the user (such as malware or spam) as well as upgrading and updating of Platform for the Product improvement. ABBYY may Process Personal Data for sending administrative information to Customer and Authorized Users or for providing Customer and Authorized User support or helpdesk.
(ii) To comply with Customer’s other reasonable instructions to the extent they are consistent with the terms of the Agreement.
(iii) ABBYY will not disclose Personal Data to a third party (including law enforcement, other government entity, or civil litigant; excluding Subcontractors) except as Customer directs or unless required or permitted by this Agreement or by law or to ABBYY’s Subcontractors and other ABBYY Affiliates. Should a third party contact ABBYY with a request for Personal Data, ABBYY will attempt to redirect the third party to request it directly from Customer. As part of that, ABBYY may provide Customer’s basic contact information to the third party. If compelled to disclose Personal Data to a third party, ABBYY will use commercially reasonable efforts to notify Customer in advance of a disclosure unless legally prohibited.
Personal Data deletion or return. Upon expiration or termination of Customer’s use of the Product, Customer may extract Personal Data stored and ABBYY will delete Personal Data with retaining the deletion log or necessary information in accordance with the relevant retention periods or otherwise as required or permitted under applicable laws.
End User requests. ABBYY will not independently respond to requests from Customer’s End Users without Customer’s prior written consent, except where required by applicable law and except for responses to Customer’s End Users requests by email with relation to providing the Product (End User support or helpdesk).
Transfer of Personal Data; appointment. Personal Data that ABBYY Processes on Customer’s behalf may be transferred to, and stored and Processed in, the European Union/European Economic Area/Switzerland, the United Kingdom, the United States, Ukraine, Australia, Russia, Japan or any other country in which ABBYY or its Affiliates or Subcontractors maintain facilities (i.e. equipment servers and/or staff). Customer consents to appoint ABBYY performing any such transfer of Personal Data to any such country and to store and Process Personal Data in order to provide the Product as well as responding to Customer’s End Users requests as specified in section 1(d) of this DPA.
ABBYY personnel. ABBYY personnel will not Process Personal Data other than to provide the Product without authorization or unless as required or permitted under applicable laws. ABBYY personnel are obligated to maintain the confidentiality of any Personal Data and this obligation continues even after their engagement ends.
Subcontractor; transfer. In order to provide the Product ABBYY may engage its Affiliates and other companies to provide limited services on its behalf, such as providing Customer and Authorized User/End User support or helpdesk; troubleshooting or maintenance; data storage and hosting services; upgrading and updating of Platform for the Product improvement; or document recognition and conversion services. Any such Subcontractors will be permitted to obtain Personal Data only to deliver the limited services ABBYY has retained them to provide, and they are prohibited from using Personal Data for any other purpose. ABBYY remains responsible for its Subcontractors’ compliance with the obligations of this DPA. Any Subcontractors engaged by ABBYY to carrying out specific Processing activities will have obligations requiring the proper level of data protection with respect to Personal Data. Customer consents to Processing of Personal Data by ABBYY’s Subcontractors as described in this DPA. Except as set forth above, or as Customer may otherwise authorize, ABBYY will not transfer to any third party (not even for storage purposes) Personal Data Customer provides to ABBYY through the use of the Product.
2. Customer responsibilities.
Customer must comply with all Data Protection Law related to its use of the Product and Customer Data. Customer is wholly responsible for implementing and maintaining privacy protections and security measures within the Interface and Customer Services provided by Customer, or on Customer’s behalf. Customer must have sufficient legal basis under the Data Protection Law for Processing Personal Data and any other information of Authorized Users/End Users or any other party to provide such Personal Data and information to ABBYY in the course of registration and using the Product or Customer Services in order to permit the processing of such data by ABBYY and ABBYY Affiliates, subcontractors and service providers as contemplated by this DPA. Customer shall defend, indemnify, and hold harmless ABBYY, its Affiliates, subcontractors and service providers from and against any and all liabilities, obligations, claims, damages, fines, penalties, assessments, costs and expenses (including court costs, reasonable costs of investigation and reasonable attorneys’ fees and expenses) incurred by ABBYY, its Affiliates, subcontractors and service providers arising out of or in connection with Customer Data or arising out of or in connection with Customer Data and/or Customer’s use of any Product or services alone or in combination with anything else violates the applicable legislation, this DPA or damages a third party.
3. Additional European terms.
- If Customer has End Users or Authorized Users in the European Union/European Economic Area or Switzerland, the additional terms in this Section 3 will apply and the Standard Contractual Clauses incorporated in this DPA in Annex 1 shall apply and are limited only to the transfer of such Personal Data from the European Union/European Economic Area or Switzerland to any country (i) not deemed by the European Commission as providing an adequate level of protection to Process in providing the Product, and (ii) not covered by a suitable framework deemed by the relevant authorities or courts as providing an adequate level of protection for Personal Data. Such Standard Contractual Clauses shall be incorporated into the Agreement upon acceptance of this DPA as a part of the Agreement.
Intent of the parties. For the Product, Customer is the Data Controller and ABBYY is a Data Processor acting on Customer’s behalf. In some circumstances, Customer may be a Processor, in which case Customer appoints ABBYY as Customer’s sub-processor, which shall not change the obligations of either Customer or ABBYY under this DPA, as ABBYY will always remain a Processor with respect to Customer. In such event, ABBYY and Customer will each comply with their respective obligations as Data Processor and Data Controller under applicable data protection laws. As Data Processor, ABBYY will only act upon Customer’s documented instructions, including with regard to transfers of Personal Data to a third country or an international organisation, unless required to do so by European Union or Member State law to which ABBYY is subject. In such case, ABBYY will inform Customer of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest. This DPA and the Agreement (including the terms and conditions incorporated by reference therein) are Customer’s complete and final instructions to ABBYY for the Processing of Personal Data. Any additional or alternate instructions must be agreed to according to the process for amending the Agreement.
Duration of data processing. The duration of Processing shall be designated under the Agreement and Exhibit A. ABBYY will, at the choice of Customer, delete or return all the Personal Data to Customer after the end of the provision of the Product relating to Processing, and delete existing copies unless applicable law requires storage of Personal Data, in which case ABBYY shall cease all Processing of the Personal Data other than as required by Data Protection Law and ensure the confidentiality and security of the Personal Data retained in accordance with the DPA and Data Protection Law and delete the Personal Data upon expiry of the time period specified by applicable law.
Subject matter and nature of the Processing. ABBYY will Process Personal Data received from Customer under the Agreement between Customer and ABBYY.
Objective of data processing. The objective of Processing of Personal Data is the performance and provisioning of the Product by ABBYY under the Agreement.
Scope (including categories of Data Subjects and types of Personal Data) and purpose of data processing. The scope and purpose of Processing of Personal Data are described in this DPA and the Agreement.
Personal Data access. For the term designated under the Agreement ABBYY will, at its election and as necessary under applicable law, either: (1) provide Customer with the ability to correct, delete, or block Personal Data, or (2) make such corrections, deletions, or blockages on Customer’s behalf.
Sub-processors. ABBYY will not engage another processor without prior general written authorisation of Customer (not to be unreasonably withheld or delayed). ABBYY will notify Customer in advance by email to Customer email address, stated in the Agreement or the DPA, of any changes concerning the addition or replacement of other processors in place on the Agreement Effective Date (except for emergency replacements or deletions of sub-processors without replacement). If Customer has a legitimate reason that relates to the sub-processors’ Processing of Personal Data, Customer may object to ABBYY’s use of a sub-processor by notifying ABBYY in writing to ABBYY email address, stated in the Agreement or the DPA, within thirty days after receipt of ABBYY’s notice. If Customer objects to the use of the sub-processor, the Parties will discuss a resolution in good faith. ABBYY may choose to: (i) not use the sub-processor or (ii) take the corrective steps reasonably requested by Customer in its objection and use the sub-processor. If none of these options are reasonably possible and Customer continues to object for a legitimate reason, either party may terminate the Agreement on thirty days’ advance written notice. If Customer does not object within thirty days of receipt of the notice, Customer is deemed to have accepted the new sub-processor. If Customer’s objection remains unresolved thirty days after it was raised, and ABBYY has not received any notice of termination, Customer is deemed to accept the sub-processor. ABBYY may change a sub-processor where the reason for the change is outside of ABBYY’s reasonable control. In this case, ABBYY will inform Customer of the replacement sub-processor as soon as possible. Customer retains its right to object to a replacement sub-processor under this section 3(g).
Assistance. Taking into account the nature of the Processing, ABBYY will assist Customer by appropriate technical and organisational measures, insofar as this is possible, for the fulfillment of Customer’s obligation to respond to requests for exercising the Data Subject’s rights laid down in Data Protection Law (including Chapter III of the GDPR). ABBYY will provide reasonable assistance so as to enable Customer to ensure compliance with obligations it may have in respect of Data Security, Personal Data Breach notification, Data Protection Impact Assessments, and engaging in other consultations, pursuant to Data Protection Law (including Articles 32 to 36 of the GDPR taking into account the nature of processing and the information available to ABBYY). Any additional assistance shall be mutually agreed between the Parties in accordance with Data Protection Law. Where Customer faces an actual or potential claim arising out of or related to the breach of any Data Protection Law concerning the Product, ABBYY will promptly provide all available materials and information requested by Customer that is relevant to the Processing of Personal data and to the defense of such claim. ABBYY will inform Customer if, in its opinion, Customer’s instruction made on the basis of Article 28(3)(h) of the GDPR infringes the GDPR, Union or Member State data protection provisions.
Personal Data breach. ABBYY will notify Customer without undue delay upon becoming aware of Personal Data Breach.
- a. General practices. ABBYY has implemented and will maintain for the Product appropriate technical and organizational measures, internal controls, and information security measures as provided by Data Protection Law (including pursuant to Article 32 of the GDPR) to protect Personal Data against accidental loss, destruction, or alteration; unauthorized disclosure or access; or unlawful destruction. Customer is wholly responsible for implementing and maintaining security within any Interface and Customer Services provided by Customer, or on Customer’s behalf.
b. Product. For the Product, ABBYY has implemented and will maintain the following:
1) Security roles and responsibilities. ABBYY personnel authorised to Process the Personal Data are subject to confidentiality obligations.
2) Asset handling. ABBYY restricts access to Personal Data. ABBYY imposes restrictions on printing Personal Data and has procedures for disposing of printed materials that contain Personal Data.
3) Logging and Reporting. ABBYY will use logging and reporting systems allowing to check whether data have been entered, changed, or removed (deleted).
c. Human resources security.
1) Security training. ABBYY informs its personnel about relevant security procedures and their respective roles. ABBYY also informs its personnel of possible consequences of breaching the security rules and procedures. ABBYY will only use anonymous data in training.
2) Physical access to facilities. ABBYY limits access to facilities where information systems that Process Personal Data are located.
3) Protection from disruptions. ABBYY uses a variety of industry standard systems to protect against loss of data due to power supply failure or line interference.
4) Component disposal. ABBYY uses industry standard processes to delete Personal Data when it is no longer needed.
d. Сommunications and operations management.
1) Data recovery procedures. The Product includes replication features that facilitate recovery of Personal Data in the event a particular machine or cluster fails. Customer is responsible for taking additional steps to provide added fault tolerance, such as creating historical backups of Personal Data, storing backups of Personal Data off the Product.
2) On an ongoing basis, ABBYY maintains multiple copies of Personal Data from which Personal Data can be recovered. ABBYY does not preserve state or data within a virtual machine, which will be restored to its original state.
3) ABBYY has anti-malware controls to help avoid malicious software gaining unauthorized access to Personal Data, including malicious software originating from public networks.
e. Domain: access control.
1) ABBYY maintains a record of security privileges of individuals having access to Personal Data.
2) ABBYY maintains and updates a record of personnel authorized to access ABBYY systems that contain Personal Data.
3) ABBYY identifies those personnel who may grant, alter or cancel authorized access to data and resources.
4) Technical support personnel are only permitted to have access to Personal Data when needed.
5) ABBYY restricts access to Personal Data to only those individuals who require such access to perform their job function.
6) ABBYY uses industry standard practices to identify and authenticate users who attempt to access information systems. Where authentication mechanisms are based on passwords, ABBYY requires that the passwords are renewed regularly. Where authentication mechanisms are based on passwords, ABBYY requires the password to be at least eight characters long. ABBYY ensures that de-activated or expired identifiers are not granted to other individuals.
f. Audits and job control.
1) ABBYY will select Subcontractors according to the standards of confidentiality set forth in this DPA.
2) ABBYY will monitor by way of regular reviews the performance and fulfillment of this DPA.
3) ABBYY will make available to Customer all information necessary to demonstrate compliance with Data Protection Law (including the obligations laid down in Article 28 of the GDPR) and allow for and contribute to audits, including inspections, conducted by Customer or another auditor mandated by Customer. The Customer audit will be limited in time to a maximum of 5 business days and scope as reasonably agreed in advance between the Parties. Reasonable advance notice of at least thirty days is required, unless Data Protection Law requires earlier audit. Customer and ABBYY will each bear their own expenses for conducting the audit.
5. Application of and Clarifications to Annex 1.
- Effect. In order to enable Customer to meet requirements under Data Protection Law, the parties hereby agree that the Standard Contractual Clauses set forth in Annex 1 apply to and are limited to the transfer of Personal Data from the European Union/European Economic Area or Switzerland to any country (i) not deemed by the European Commission as providing an adequate level of protection to Process in providing the Product, and (ii) not covered by a suitable framework deemed by the relevant authorities or courts as providing an adequate level of protection for Personal Data.
Clause 5(h) of the Standard Contractual Clauses. In accordance with Clause 5(h) of the Standard Contractual Clauses, Customer as a data exporter acknowledges and agrees that ABBYY as a data importer may retain ABBYY’s Affiliates or Subcontractors as Sub-processors and that ABBYY may engage third-party processors in connection with the provision of the Product. Any such Sub-processor will be permitted to Process Personal Data only to deliver the portions of the Product ABBYY has retained it to provide and for no other purpose.
Clause 12(1) of the Standard Contractual Clauses. Clause 12(1) of the Standard Contractual Clauses will be satisfied by the return and/or deletion of data exporter’s data in accordance with the Agreement and the DPA.
6. Order of precedence.
If there is a conflict between any provision in this DPA and any provision in the Agreement, this DPA shall control. The Standard Contractual Clauses in Annex 1 supersede any conflicting terms in the Agreement and this DPA if and to the extent a data subject asserts rights as a third party beneficiary regarding the Processing of his or her Personal Data. Notwithstanding the foregoing, the Agreement and the terms of this DPA apply only between the parties and do not confer any rights to any third party data subjects. This DPA and the Standard Contractual Clauses in Annex 1 do not replace any additional rights related to Processing of Personal Data in the Agreement.
7. Entire agreement.
Except for changes made by this DPA, the Agreement remains unchanged and in full force and effect.
8. Term and Termination
This DPA and Annex 1 will terminate simultaneously and automatically with the termination of the Agreement.
To the extent required by applicable Data Protection Law, this DPA shall be governed by the law of the applicable jurisdiction. In all other cases, this DPA shall be governed by the laws of the same jurisdiction stated in the Agreement for governing the Agreement.