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 USA Software House Inc., a California corporation having its principle place of business at 890 Hillview Court, Suite 300, Milpitas, California 95035, USA.
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://usa.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.
- 2.1. 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. d
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.
- 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 firstname.lastname@example.org 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 email@example.com 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 California, without regard to or application of its conflicts of law principles.
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 Santa Clara County, California and Licensee consents to the exclusive personal jurisdiction of such courts for such purpose. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.