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ABBYY FlexiCapture Cloud

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Terms of Service for the ABBYY FlexiCapture Cloud Service

ABBYY will provide You with the Service subject to these Terms of Service for the ABBYY FlexiCapture Cloud Service (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. Definitions

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 username and password, and defines various settings for use of the 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 an Account username and 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. “End User” means a person or legal entity using Your Application/Your Service in accordance with the End User Agreement

1.7. “End User Agreement“ means a written agreement between You and an End User that governs the rights and obligations of End User’s use of the Your Application/Your Service.

1.8 “Intellectual Property Rights“ means all rights of any nature in patents, registered designs, registered trademarks and service marks, and all extensions and renewals thereof, unregistered trademarks 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.

1.9. “Partner“ means an entity or individual who is authorized by ABBYY to market, promote or re-sell the Service on behalf of ABBYY.

1.10. “Project“ means a specific set of files that contain settings for importing, processing, and exporting documents that may be uploaded to the Service.

1.11. “Service“ means “ABBYY FlexiCapture

1.12. “Service Fees“ means the fees (as specified in each invoice or otherwise) payable by You to ABBYY for use of the Service.

1.13. “Service Marketing Materials“ means picture samples, demo samples, user’s guides, notification texts and other marketing materials made available to You through e.

1.14. “Service Storage“ means the software and hardware used by ABBYY to store Uploaded Data.

1.15. “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.

1.16. “You” or “Your” means any person and/or any entity that has accepted this Agreement and/or uses the Service.

1.17. “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, or automatically collected about Authorized Users. Your Data does not include Uploaded Data.

1.18. “Your Application/Your Service” means an application or service incorporating or using the Service, operated by You or Your behalf, that is capable of sharing an Account with the Service, generally through an application program interface (API).

1.19. “Your Functionality” means the set of capabilities that You make available through Your Application/Your Service for End Users utilizing the Service.

1.20. “Uploaded Data“ means any data, information, or material uploaded by You, End Users or Authorized Users to the Service Storage in the course of using the Service.

2. Service

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, right to access and use the Service during the term of this Agreement. 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: (i) without notice if it does not disrupt computer-to-computer integration that is based upon reasonable integration techniques supported by ABBYY, between Your Application/Your Service and the Service, or (ii) with 90-days’ notice to Your Account e-mail address if it disrupts such computer-to-computer integration. Notwithstanding the above, features designated as “Beta”, “Preview”, “Experimental”, “Labs” or with other similar designations (“Experimental Features”) may be changed or removed at any time without notice, even if such action disrupts computer-to-computer integration. ABBYY is under no obligation to make any new features or feature modifications available as part of the Service.

2.3. Technical Integration. You are solely responsible for technical integration of the Service, the feasibility of integration ofthe Service, and all costs associated with technical integration of the Service. Under no circumstances shall ABBYY be liable for any failure to achieve satisfactory or timely technical integration, even if the failure is caused by a software issue, documentation issue or insufficient support by ABBYY.

2.4. Limits. In order to ensure the efficient and stable operation of the Service, 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.

2.5. 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 third parties, whether companies or individual subcontractors as well as ABBYY affiliates (“Approved Contractors”) which have been determined by ABBYY 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.

2.6. No right to sublicense. ABBYY does not grant You the right to sublicense the Service without ABBYY’s prior written consent.

2.7. Service Users. ABBYY will make the Service available to You and Your Authorized Users for access and use by Authorized Users solely for Your, and End Users’, internal business purposes, except as otherwise provided in a separate written 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 Service in accordance with the applicable laws.

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 the 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 Service 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 required 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 the Service;
• b. initiate 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 described in the online documentation.
• 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 the rights to perform such acts are expressly required under the applicable laws;
• f. misuse the Service by knowingly introducing viruses, Trojans, worms, logic bombs or other material which is malicious or technologically harmful; or

3.2. Code Samples Restrictions. Except as otherwise explicitly provided in this Agreement:

a. Code Samples are the property of ABBYY and shall at all times remain ABBYY’s property.

• b. You may include the Code Samples in Your Application/Your Service.
• c. You may study, modify and provide the Code Samples to End Users in binary code form as part of Your Application/Your Service or provide in-house access to the Code Samples, provided that Your Application/Your Service uses the Code Samples solely for processing the results obtained with the Service.
• d. Ownership of modifications to the Code Samples shall remain with the party making such modifications.
• e. If You disclose modifications made to the Code Samples by sending them to ABBYY technical support or by any other means, ABBYY shall be deemed to have been granted an irrevocable, non-exclusive, perpetual, transferable, royalty-free license to make, use, sell, offer to sell, import, license, sub-license, and assign its license to Your modifications to the Code Samples, without remuneration due to You. You represent and warrant that the aforementioned rights granted to ABBYY shall be free of any third party rights or encumbrances and that You have obtained all necessary rights to grant the rights to ABBYY and that You have, if applicable, paid all necessary remuneration to the authors of such modifications. If You do not wish to license to ABBYY Your modifications to the Code Samples, You shall not disclose to ABBYY the source code of such modifications.

3.3. Service Marketing Materials Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly required 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.

3.4. Actions by Authorized Users. You are responsible 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 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 the Service by Authorized User or/and End Users. You are solely responsible for the security of Authorized User account information, including the storage of usernames, 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, including but not limited to minimum password strength and maximum password lifetime.

3.5. 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.

3.6. Data. You are solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, intellectual property ownership, and usage rights for all of Your Data and any Uploaded Data sent by You, Your Authorized Users/End Users to the 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 and Uploaded Data, including those related to data privacy, international communications, and the transmission of technical or personal data.

3.7. To perform the obligations under this Agreement in an efficient manner, ABBYY and its affiliates may need to process and store Your Data and Uploaded Data. You shall provide to ABBYY, in compliance with the Data Protection Laws, certain information that is reasonably required by ABBYY to provide 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 and Uploaded Data (including, but not limited to, collecting, systematizing, storing, updating, modifying, using, distributing, transferring, depersonalizing, locking or deleting) for the purpose of providing You with the Service, and 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 as necessary for the performance of this Agreement.

3.8. You hereby authorize ABBYY to send Your designated personnel, agents and representatives 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. You may remove such personnel’s e-mail addresses from the mailing list at any time by sending an email to [email protected].

3.9. You shall also receive from ABBYY e-mail messages with critical information related to the Service operation (password-related e-mails, service notifications, etc.).

3.10. You agree that, other than ABBYY’s legal obligations as a processor of certain data stored in the Service, You are solely responsible for complying with any laws, treaties, or regulations in connection with its collection, uploading, use, transfer and other control of any Uploaded Data or Your 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 failures or leads to the abnormal consumption of computing resources or other exceptional cases adversely affecting the functionality of the Service, You consent to ABBYY’s use of such Uploaded Data for the sole purposes of improving and safeguarding the functionality of the Service.

3.11. Data Storage. 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 Service, You consent to any such transfer of data outside of Your country for the purpose of enabling You to use the Service. Client is responsible for obtaining any legally-required consents from End Users for the processing of their data by the Service.

3.12. Your Data is stored and processed by ABBYY in accordance with our Privacy Policy (https://www.abbyy.com/privacy/ ).

4. Pricing

4.1. To the extent that a deposit or prepayment 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. All Service Fees are non-cancellable and are non-refundable, except as otherwise provided for herein or as required under applicable law.

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

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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 Your receipt of the invoice, 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 against any amounts ABBYY may owe 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.

5.6. 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.

6. Confidentiality

6.1. Confidential Information. In connection with this Agreement each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to Section 6.2, ABBYY’s “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) consisting of or relating to its technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, including any written or oral information disclosed by ABBYY in relation to the Service, Code Samples, Service Management System and Service Storage, in each case whether or not marked, designated, or otherwise identified as “confidential.” Subject to Section 6.2, Your “Confidential Information” means all Your Data, in each case whether or not marked, designated, or otherwise identified as “confidential.”

6.2. Exclusions. Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.

6.3. Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:

(a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;

(b) except as may be permitted by and subject to its compliance with Section 6.5, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 6.3; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 6;

(c) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care;

(d) promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps with Disclosing Party to prevent further unauthorized use or disclosure; and

(e) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with the terms of this Section 6.

6.4. Notwithstanding any other provisions of this Agreement, the Receiving Party’s obligations under this Section 6 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.

6.5. Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable law to disclose any Confidential Information then, to the extent permitted by applicable law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy; and (b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 6.5, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.

6.6. 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. Technical Support

7.1. You may use the public ABBYY FlexiCapture Knowledgebase (http://help.abbyy.com/en-us/flexicapture/12/admin%5Fguide/introduction%5Fag ) and the public ABBYY FlexiCapture Forum (http://www.capturedocs.com/ ) free of charge at any time according to the respective Privacy Policy and Terms of Use, which are accessible from the respective web pages.

7.2. Error means a defect in the Service that leads to an abnormal termination or interruption in the functionality of the Service.

7.3. Technical Support is a service rendered by ABBYY to You regarding possible Errors as well as for solving other problems with access and/or activation of the Service. Technical Support does not include assistance or support for errors, deficiencies, or malfunctions related to a Project.

7.4. 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. ABBYY will not provide any technical support to End Users.

7.5. If You purchased the Service directly from a Partner then Your support requests should be directed to the Partner and ABBYY’s Technical Support will be provided directly to the Partner. .

7.6. ABBYY offers Professional Consulting Services, which You may purchase on an hourly basis. Such services are not included as part of this Agreement.

7.7. ABBYY agrees to make commercially reasonable efforts to take appropriate corrective actions in response to reported Errors report if You provide sufficient information in order for ABBYY to replicate the Error.

7.8. ABBYY will not provide any technical support to any third party except You.

8. Termination

8.1. Term. This Agreement is effective upon the earlier of (i) the date You accept this Agreement or (ii) You begin using the Service, and will continue in effect for as long as You use the Service or until terminated in accordance this Section 8.

8.2. Without prejudice to ABBYY’s other rights and remedies under the Agreement and/or the applicable law, ABBYY has the right to revoke the Service, suspend 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:

1. a. You failed to pay invoices when due and continue such payment default for 15 days or more after receipt of ABBY’s written notice of late payment.
2. b. You breach Sections 2, 3, 5, 6 and/or Section 12 of the Agreement;
3. c. You become bankrupt or insolvent, or suffer any similar action in consequence of indebtedness or goes into voluntary or compulsory liquidation;
4. d. 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.
5. e. ABBYY reasonably determines that Your use of the Service violates the law, misappropriates or infringes the Intellectual Property Rights of a third party, or poses a threat to the security or performance of ABBYY’s network or to any of its clients or suppliers.

8.3. 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.

8.4. You may contact ABBYY by e-mail at [email protected] to deactivate Your login (Account) and cease Your use of the Service at any time.

8.5. 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.

8.6. If You purchased the Service directly from a Partner, Partner may have a right to revoke the Service, limit Your access to it or/and delete some or all Uploaded Data. All disputes between You and such Partner, whether or not relating to any information, data or forms available on or through the Service, will be settled by and between You and such Partner. ABBYY bears no responsibility for resolving such disputes and has no obligation to be involved in any way in any such dispute.

9. Consequences of Termination

9.1. Upon termination of the Agreement, all the rights granted to You thereunder will immediately terminate.

9.2. The expiration or earlier termination of the Agreement shall not have any effect on its provisions that 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.

9.3. The following provisions will survive any expiration or termination of this Agreement: Sections 4, 5, 6, 11, 13 and 14.

9.4. Refunds. Upon termination of the Agreement, all payments made in accordance with Section 4 and 5 are deemed non-refundable.

9.5. 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.

10. Copyrights and Trademarks

10.1. All product names are the trademarks or registered trademarks of their respective owners.

10.2. 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 You a license to use these trademarks.

10.3. 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.

10.4 Your End-User Agreement shall contain terms in favor of ABBYY that, at a minimum, substantially meet the following requirements:

1. a. Statements that Your Application/ Client’s Service utilizes the Service, referred to by the exact name of the Service;
2. b. End User is granted only a non-exclusive, nontransferable right to use the Service.
3. c. ABBYY shall not be liable to the End User for any general, special, direct, indirect, consequential, incidental, or lost profits or other damages arising out of or related to the Service;
4. d. End User will not: (a) de-compile or reverse engineer the software that operates the Service (the “Software”) or its component parts; (b) modify, publish, transmit, license, sublicense, transfer, sell, distribute, reproduce, create derivative or collective works from, or in any way otherwise exploit the Software or make the Software available, in whole or in part; (c) disclose results of any services or program benchmark tests without ABBYY’s prior written consent; (d) license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Service available to any third party other than as expressly permitted under the terms of the agreement; (e) transmit files, content, photographs, videos, personal or technical data or any other type of information or data (collectively, “User Content”) that is defamatory or libelous; (f) transmit any User Content that it has no rights to, or for which transmission would constitute infringement of third-party Intellectual Property Rights; or (g) transmit any viruses, malicious code, Trojans, worms, corrupted files, or any other similar software that may damage the operation of another’s computer, data or property, or transmit any other harmful or code technology; and
5. e. All disputes between You and End Users, whether or not relating to any information, data or forms available on or through the Service, will be settled by and between You and End User. ABBYY bears no responsibility for resolving such disputes and has no obligation to be involved in any way in any such dispute.

11. Limited Warranty and Disclaimers

11.1. 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.

11.2. 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.

11.3. 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.

11.4. ABBYY represents and warrants, throughout the Term of this Agreement, that (i) ABBYY has validly entered into this Agreement and has the legal power to do so, and (ii) ABBYY will provide the Service only in accordance with applicable laws and government regulations. OTHER THAN THE FOREGOING, THE SERVICE AND ALL DATA ARE PROVIDED TO YOU ARE STRICTLY ON AN “AS IS” BASIS AND 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, ABBYY’s APPROVED CONTRACTORS, AND ABBYY’S LICENSORS.

11.5. Performance of Your Application /Your Service. ABBYY cannot warrant the performance of any of Your Application/Your Service created by or for You using the Service, nor does ABBYY make any representations or warranties with respect to performance of the Service in conjunction with Your Application/Your Service.

11.6. No warranties for third party software products. ABBYY makes no warranties for any third party software products, which may be included into the Service.

11.7. 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 or any End-user’s 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) Other than provided in the SLA https://www.abbyy.com/en-us/flexicapture/cloud-sla/ , 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.

11.8. Without prejudice to ABBYY’s obligations as set forth above, You warrant that You are the exclusive owner of all rights to Your Application/Your Service and that the Application does not infringe the Intellectual Property Rights of any third party.

11.9. Service Level. The availability of the Service and its service levels 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/ .

11.10. ABBYY, in its sole discretion, may provide a partial refund or provide additional page volume if the guaranteed Service Level according to Section 11.9 is not met.

1. a. In order to be eligible for such compensation, You have to submit a claim to ABBYY [email protected] not later than 10 (ten) calendar days after the end of applicable calendar quarter.
2. b. 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.
3. c. 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
4. d. 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.
5. e. In the event guaranteed 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.

12. Limitation of Liability and Indemnification

12.1. Limitation of Liability. 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 ABBYY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

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.

12.2. THESE LIMITATIONS SHALL APPLY DESPITE THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PROVISIONS OF THIS SECTION 12 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 SERVICE WITHOUT SUCH LIMITS. THIS SECTION 12 SHALL NOT BE SUBJECT TO ANY DISCLAIMER OR PROVISION SET FORTH IN THE AGREEMENT.

12.3. Indemnification by You. 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/Uploaded Data, including any Processing of Your Data/Uploaded Data by or on behalf of ABBYY in accordance with this Agreement; or
• (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.

12.4. 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 12.3;
• (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 12.3 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.

13. Miscellaneous Provisions

13.1. ABBYY may assign its rights and obligations hereunder (or any part thereof) to a third party at any time without notice or Your consent. 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.

13.2. Dispute Resolution. The following procedure shall be observed to resolve any dispute arising between You and ABBYY under this Agreement or otherwise. 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 is not obligated to respond to anonymous complaints or complaints from users who cannot be identified with the data they provided to register.

13.3. 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.

13.4. 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.

13.5. 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.

13.6. 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.

13.7. Entire Agreement. This Agreement (along with 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. 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.

13.8. 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.

13.9. 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.

13.10. All the terms and periods herein are calculated as calendar periods, unless otherwise expressly specified.

13.11. 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 rights; and (ii) otherwise have a material adverse impact on Your rights under the Agreement, as reasonably determined by ABBYY. ABBYY will notify You with at least 15 days notice before changes will take effect (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 is not required to notify You about editorial changes.

13.12. 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.

13.13. Applicable Law and Jurisdiction. 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. 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 You consent 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.

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