ABBYY Partner Reselling Terms
- ABBYY PARTNER RESELLING
Last updated: 12 September 2023
These ABBYY Partner Reselling Terms and Conditions(“Terms”) set forth the terms and conditions under which Partner may purchase, resell, and distribute ABBYY Products. In these Terms, ABBYY and Partner are sometimes referred to individually as a “Party” and together as the “Parties”.
a. “ABBYY” means an ABBYY legal entity identified in an applicable Quote.
b. “Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise.
c. “Affiliate” means any business affiliate of a Party who directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or control with, such Party or with another affiliate of such Party. Ownership or control shall exist through the direct or indirect ownership of more than 50 % of the nominal value of the issued equity share capital or an equitable interest, profit, voting or similar interest (including any right or option to obtain such an interest) representing the right to elect the majority of the directors or persons performing similar functions or, if the law of the applicable jurisdiction does not permit such majority interest, then the maximum allowable under such law.
d. “Certification” means the certification process established by ABBYY as described in the Partner Program, which includes certification training for Partner’s staff.
e. “Cloud-Services” means software-as-a-service products identified in an applicable Quote hereto or otherwise provided by ABBYY for resale, and all associated 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 Partner or its End User(s), as well as ancillary online or offline services, audio, visual and text information.
f. “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that ABBYY considers confidential or proprietary, that is received by Partner wheter marked as “confidential,” “proprietary” or other similar legend or not. Confidential Information includes information consisting of or relating to ABBYY technology, trade secrets, know-how, business operations, plans, strategies, customers, potential customers and pricing, and information with respect to which ABBYY has contractual or other confidentiality obligations. Without limiting the foregoing, all specifications for the Product, unpublished Documentation, non-public Marketing Materials, and the terms and existence of business between the Parties are deemed ABBYY’s Confidential Information.
g. “Data Protection Laws” mean any law, rule, regulation, decree, statute, or other enactment, order, mandate or resolution, applicable to Partner, ABBYY, or End Users, relating to data security, data protection, and/or privacy, including with respect to the collection, storage, transmission, transfer (including cross-border transfers), disclosure, use, retention and disposal of Personal Data (including Personal Data of employees, contractors, and third parties).
h. “Documentation” means every document provided by ABBYY that is related to the Product or Services including, without limitation, technical manuals and user documentation, and online knowledge bases.
i. “End User” means Partner’s customer identified as such in an applicable Quote, who has been provided with access to an ABBYY Product and/or Services who purchases the Product and/or Services for its own use and not for resale.
j. “EULA” means (i) ABBYY end user license agreement packaged with or/in the ABBYY Product, or otherwise provided on delivery of the Software or installation of the Software; or (ii) or a separate written license agreement between ABBYY and End User that governs the use of ABBYY Products. For clarity, Terms of Cloud-Services is EULA with respect to Cloud-Services.
k. “Intellectual Property Rights” means all intellectual and industrial property rights whether registered or unregistered and includes rights to (i) inventions, discoveries, and letters patent including reissues thereof and continuation and continuations in part, (ii) copyrights, (iii) designs and industrial designs, (iv) ABBYY Trademark, (v) know-how, trade secrets and Confidential Information, (vi) trade and business names (including internet domain names and email address names), (vii) applications for any of those rights, and (viii) other proprietary rights and all similar or equivalent rights or forms of protection, in any part of the world.
l. “List Price” means the set of current prices for Products, and/or Services which may be changed by ABBYY from time to time at its sole discretion for future orders.
m. “Loss” or “Losses” means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
n. “Marketing Materials” means any advertising, promotional, or marketing materials for or relating to the Product that ABBYY may make available to Partner from time to time.
o. “Partner” means an entity identified as “Responsible Partner” or “Distributor” in a Quote referencing these Terms.
p. “Partner Program” means the set of policies stating the fundamental rules and procedures that govern the working relationship between ABBYY and its Partners, which may be changed or updated by ABBYY from time to time in its sole discretion. The current Partner Program is available at https://www.abbyy.com/partner-program-guide/.
q. “Partner Subscription Terms” means the ABBYY Partner Subscription Terms governing terms of subscription, billing and payment procedure for the distribution and use of Products on a subscription-based model posted at https://www.abbyy.com/legal/partner-subscription-terms/ as updated by ABBYY from time to time. The definition of “You” in Partner Subscription Terms shall be construed to refer to Partner hereunder.
r. “Personal Data” means any information relating to an identified or identifiable individual as further defined in the applicable Data Protection Laws.
s. “Product” or “ABBYY Product” means the Software and Cloud Services.
t. “Quote” means a quote document issued by ABBYY with respect to a Partner’s order of ABBYY Products and/or Services.
u. “Representative” means an officer, director, employee, partner, agent, contractor, or professional consultant of a Party or its Affiliates.
v. “Services” means training services, Certification training, SM Services and professional services that ABBYY provides to Partner or to End User or Partner provides to an End User.
w. “SM Services” means software support and maintenance services for Products.
x. “SM Terms” means ABBYY Support and Maintenance Terms governing provision of SM Services posted at https://www.abbyy.com/sm-terms/ as updated by ABBYY from time to time.
y. “Software” means the ABBYY software products identified in an applicable Quote provided by ABBYY for resale.
z. “Terms of Cloud-Services” means ABBYY’s standard terms and conditions for End Users that govern access and use of the ABBYY Cloud-Services that each End User must accept in order to access the ABBYY Cloud-Services. If ABBYY updates the Terms of Cloud-Services, then each End User must accept the updated Terms of Cloud-Services upon or prior to the renewal of their subscription to ABBYY Cloud-Services.
aa. “Third-Party Materials” means all materials and information in any form or medium, including any open source components or other software, documents, data, content, specifications, products, equipment or components of or relating to the Software that are not proprietary to ABBYY.
bb. “Trademarks” means any trademarks, service mark, trade names, logos, slogans, domain names, designs, or other indicator of source, affiliation, or sponsorship, whether registered or unregistered of a Party.
2. License; Restrictions; and Non-Compete:
a. Authorization to resell and non-exclusivity: ABBYY hereby grants to Partner a non-exclusive, limited license to resell ABBYY Products and Services (in the form provided by ABBYY) directly only to End Users identified as such in an applicable Quote(s).
b. Restrictions: Partner shall distribute Products to End Users subject to the terms of the EULA and the terms hereof. Partner shall not:
i. grant to End Users any rights that exceed the scope of the license limitations specified in the EULA;
ii. make any representations, warranties or indemnities on behalf of ABBYY that exceed those set forth in the EULA;
iii. make any claims concerning the Products or ABBYY’s obligations that are different from those set forth in the EULA;
iv. distribute copies of the Software (including installation files and documentation) or licenses for Products, directly, to any user other than the End User for whom a valid Product license is issued by ABBYY;
v. use Products for Partner’s own internal business operations or to provide Business Process Outsourcing (“BPO”) services, hosting services, or services to third parties, unless an applicable Quote expressly provides otherwise;
vi. market, distribute, license, or otherwise make available, or provide support or other services for, any Product to anyone except the End User identified in an applicable Quote;
vii. copy, modify, or create any derivative works or improvements of any Products or Documentation;
viii. remove, delete, add to, alter, or obscure the specifications for the Products, Documentation, or EULA, or any warranties, or disclaimers, or other notices, or any marks, symbols or serial numbers (including any ABBYY Trademarks) that appear on or in connection with any Product as provided or directed by or on behalf of ABBYY; or
ix. under or in connection with any part of these Terms or their subject matter, perform any act that, or fail to perform any act the omission of which, infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any person, or violates any applicable law.
c. Modifications to Products: Partner acknowledges and agrees that ABBYY may modify Products and/or may release new versions of Products at any time and for any reason including, but not limited to, to address End Users’ needs or otherwise address competitive demands, to respond to a government regulation, order, or law, or to advance the quality of Products. ABBYY reserves the right to discontinue the Products, add new features or functionality to the Products, or to remove existing features or functionality from Products.
d. Non-Compete. Partner shall not access or use the Products or Services for purposes of: (a) benchmarking or competitive analysis of such Products or Services; (b) developing or, producing, marketing, distributing, licensing, or selling any product that is competitive with any of the Products or Services (“Competitive Products”). Partner shall make commercially reasonable efforts to spend in reselling Products or Services an effort comparable to, or better than, the effort spent by Partner in developing, producing, marketing, distributing, licensing, or selling any Competitive Products, except when Partner reasonably determines that a potential customer’s system would be best served by a Competitive Product because the Products do not provide the functionality required by such potential customer. Partner shall not, in each case where the prospective End User arises from a Lead provided by ABBYY or from ABBYY requesting Partner to participate in a competitive bid, (a) promote or prioritize any Competitive Products above or instead of the Products; or (b) market or demonstrate a solution to a prospective End User that includes any Competitive Products as an alternative of the Products.
a. Cloud-Services and subscription Management. Partner will perform certain functions associated with the purchase, activation, support and management of integration for subscriptions to the Cloud-Services.
b. Disablement. ABBYY is not liable in any manner whatsoever to the End User for damages or harm arising out of Partner's disablement of the End User’s subscriptions to the Cloud-Services. ABBYY may disable an End User 's subscription for legal or regulatory reasons or as otherwise permitted under Terms of Cloud-Services, in which case ABBYY will notify Partner of the disablement without undue delay. If ABBYY disables an End User’s subscription, ABBYY will also suspend billing to Partner for that End User’s subscription until the subscription is re-enabled.
c. Cancellation. Partner may cancel a subscription to Cloud-Services for an End User, however: a refund will only be allowed if specifically permitted by the Terms of Cloud-Services. Upon cancellation, and as permitted per the Terms of Cloud-Services, the End User may be permitted to migrate its data to either a new subscription to Cloud-Services or to some other service. Upon request, ABBYY may assist Partner with migration of its End User's data at an additional charge agreed to between Partner and ABBYY.
d. Service Level Agreement Credits. If an End User makes a claim to Partner with respect to a failure of the service levels, Partner must escalate the claim to ABBYY for review. ABBYY will review the claim according to the standard Terms of Cloud-Services review process.
e. Communications. ABBYY may send direct communications to End Users related to the Terms of Cloud-Services or the operation or delivery of the ABBYY Cloud-Services. Partner must provide ABBYY with accurate contact information for the administrator of each End User account. Partner will use commercially reasonable efforts to provide information that is accurate and current. Partner shall be liable for any and all damages due to incomplete or erroneous information provided to ABBYY.
a. Purchase: Partner shall first purchase the Product before reselling it to End Users. Partner is only authorized to purchase Products directly from ABBYY.
b. Ordering and Order Fulfillment: Partner may at any time request ABBYY to provide a quotation for ABBYY Software and/or Services. Upon receipt of Partner’s request ABBYY will issue to Partner a Quote specifying ABBYY Software and/or Services being ordered, applicable prices and other relevant details. To proceed with the order Partner shall countersign the Quote and return it to ABBYY via email or otherwise in writing. Partner may accompany the countersigned Quote with Partner’s standard purchase order, provided, however, that any terms appearing on such purchase order and being in addition to or in contradiction with the terms of this Agreement and of the Quote shall have no effect and will not bind ABBYY. Upon receipt of the order, ABBYY will send Product delivery information to the email provided by Partner and will issue an invoice to Partner for the items listed in the order.
ABBYY reserves the right to change any required practices, procedures or purchase terms at any time at its discretion.
c. Pricing and Discounts: Partner’s price for each order for Products or Services is determined by ABBYY at its sole discretion. Discounts are only applicable on Products and Services resold to an End User. ABBYY may revise pricing from time to time, provided that price changes shall not apply to orders already invoiced by ABBYY.
ABBYY may at its sole discretion apply discounts which differ from those set in the Partner Program if: (i) Partner misses the yearly revenue achievement goals applicable to its partner level according to the Partner Program; (ii) Partner delivers the opportunity to ABBYY and ABBYY needs to deliver it to the End User instead of the Partner; (iii) Partner requires extensive support from ABBYY sales and technical teams to satisfy End User’s requirements; (iv) Partner provides a qualified sales opportunity to ABBYY (referral).
d. Negotiated Prices:
i. Quotes: All price quotes on Products and Services provided during negotiations shall be kept confidential between the Parties except for disclosure to the relevant Lead/End User, relevant ABBYY distributor and/or ABBYY Affiliates.
ii. Discounts: Any discounts granted by ABBYY to Partner for Products and Services are solely based on the List Price current at the time of an order. Any special price request on behalf of Partner that may differ from the standard pricing (List Price) needs to be confirmed in writing by ABBYY. Nothing in these Terms is intended to prevent Partner from setting its own resale prices. Partner shall at all times be free to set its own resale prices.
e. Payment terms, taxes:
i. Expenses: Except where otherwise expressly provided in these Terms, each Party is solely responsible and liable for all costs and expenses it incurs in entering into and performing these Terms.
ii. Taxes: Any prices quoted or agreed are exclusive of taxes or any other applicable levies or charges. Any applicable custom duties, withholding taxes, VAT or other sales tax arising out of or in connection with the purchase and resale by Partner of Products and Services, as well as penalties and charges for non-compliance with any such tax and other applicable regulations, and other similar payments which may be levied or imposed on ABBYY by the authorities of Partner's country shall be borne by Partner.
iii. Payment terms: Subject to ABBYY’s accounting department’s satisfactory completion of a credit check and approval, ABBYY will grant Partner payment terms specified in an applicable Quote up to the total credit limit amount approved by ABBYY for Partner. Partner will make all payments when due (a) in the currency specified in an applicable Quote by wire transfer of funds to an account specified by ABBYY in writing from time to time, or such other means as ABBYY may agree to; and (b) without setoff, deduction, recoupment, or withholding of any kind, whether under these Terms, applicable Law, or otherwise and whether relating to ABBYY’s breach, bankruptcy, or otherwise. ABBYY has no responsibility for billing or collecting fees or any other amounts from End Users. In connection with such activities, Partner will act in all respects for its own account and will be responsible for such matters as credit verification, deposits, billing, collection, bad debts and any unauthorized use of the Products by or on behalf of End Users. Partner bears all credit risk regarding, and is solely responsible for collecting payment for, all licenses of the Products to End Users and provision of Services. Partner’s inability or failure to collect the fees for the licenses of Products and Services from End Users does not affect Partner’s obligation to pay ABBYY in strict accordance with this Section 4.f.
iv. Late Payment or Non-Payment: Should Partner default in paying any sums due and payable to ABBYY under these Terms, without limiting its other remedies (a) ABBYY is entitled to accelerate and demand the satisfaction of all claims for payment it may have in respect of any and all past or continuing business transactions with Partner; (b) Partner will reimburse ABBYY for all reasonable costs incurred by ABBYY in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; (c) ABBYY may place Partner’s account on hold and stop processing orders from Partner until all past due amounts and interest thereon have been paid; and/or disable, or withhold, suspend, or revoke its grant of a license of, or performance of services relating to, any Product until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Partner or any other person by reason of any such action.
v. Invoicing: All invoices issued to Partner pursuant to these Terms will be transmitted electronically to Partner, and Partner hereby acknowledges and agrees to the sufficiency of receiving such invoices electronically.
vi. Set off: ABBYY may at any time, without notice to Partner, set off any liability owed from Partner to ABBYY against any liability owed from ABBYY to Partner, whether or not the liability is liquidated or unliquidated, and whether or not the liability arises under these Terms. If the liabilities to be set off are expressed in different currencies, ABBYY may convert either liability at a market rate of exchange for the purpose of set-off. Any exercise by ABBYY of its rights under this Section 4.f shall not limit or affect any other rights or remedies available to it under these Terms or otherwise.
f. Delivery Date and shipment:
i. Delivery of Software: ABBYY will deliver the Software to Partner directly or via the relevant distributor in the form of a license key and a hyperlink for Software download. ABBYY will deliver one license key and one hyperlink per purchase order. ABBYY will be deemed to have fulfilled its delivery obligations when the appropriate license key and the hyperlink are sent via e-mail to Partner or to the relevant distributor by ABBYY. Software licenses delivered remain revocable by ABBYY until all outstanding invoices have been settled in full.
ii. Delivery of ABBYY Cloud-Services. Upon receipt and acceptance of a valid order for the Cloud-Services, ABBYY will provide access to the Cloud-Services for the benefit of the applicable End User based on the End User information provided by Partner. Unless otherwise agreed between Partner and ABBYY, ABBYY will provide administrative log in credentials to Partner directly or via the relevant distributor and Partner is responsible for providing each End User with its administrative log in credentials.
Ordering of Subscriptions. Partner Subscription Terms which are incorporated herein by reference shall apply to any order of Products that are provided on a subscription basis.
a. Partner's Representations and Warranties. Partner represents and warrants that all information provided by Partner to ABBYY is true and accurate. Partner represents and warrants that it will: (i) inform ABBYY of any difficulties it encounters in servicing End Users; (iv) review and comprehend the EULA before any resale of the applicable ABBYY Product to End User; and (v) promptly notify ABBYY about any known or suspected violations of the EULA by an End User. Partner further represents and warrants that (A) it is duly organized and is validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization; (B) it has the requisite corporate power and authority and all necessary governmental approvals to carry on its business in the as it is now being conducted; (C) it is duly qualified or licensed to do business, and is in good standing (to the extent applicable) in its and End User’s jurisdiction where the nature of its business makes such qualification or licensing necessary; (D) it has the right, power and authority to enter into these Terms and to fully perform its obligations hereunder; (E) the entering into and performance of these Terms by Partner does not violate, conflict with, or result in a material default under any other contract or agreement to which Partner is a party, or by which it is bound; and (F) the provisions of these Terms, and the rights and obligations of the Parties hereunder, are enforceable under the laws of the jurisdictions in which Partner does business.
b. ABBYY warranty. ABBYY provides a limited warranty to End Users only and not to Partner with respect to its Products as set forth in the applicable EULA.
EXCEPT AS EXPRESSLY PROVIDED TO AN END USER IN THE EULA, THE PRODUCTS AND SERVICES (INCLUDING TECHNICAL DOCUMENTATION FOR THE PRODUCTS AND SERVICES, AND ANY UPDATES OR ERROR CORRECTIONS PROVIDED FOR THE PRODUCTS OR SERVICES) ARE PROVIDED ON AN “AS IS” BASIS, AND ABBYY MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD THERETO. ABBYY HEREBY DISCLAIMS ANY AND ALL OTHER WARRANTIES, AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES AND CONDITIONS OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ABBYY DOES NOT WARRANT THAT ANY PRODUCT WILL BE ERROR-FREE OR OPERATE IN AN UNINTERRUPTED FASHION, WILL MEET THE REQUIREMENTS OF PARTNER OR ITS END USERS, OR THAT THE PRODUCT WILL FUNCTION PROPERLY WHEN USED IN CONJUNCTION WITH ANY OTHER SOFTWARE OR HARDWARE.
6. Intellectual Property rights
a. Property rights: All right, title, and interest in and to the Products and Third-Party Materials, including all Intellectual Property Rights therein, are and will remain, respectively, with ABBYY and the respective rights holders in the Third-Party Materials. Partner has no right or license with respect to any Products or Third-Party Materials except as expressly licensed under Section 2, or the applicable third party license, in each case subject to the requirements and restrictions set forth in these Terms and Partner shall comply with the same, along with Section 2.b (Restrictions). All other rights in and to the Products and Third-Party Materials are expressly reserved by ABBYY and the respective third party licensors. Partner hereby unconditionally and irrevocably assigns to ABBYY or ABBYY’s designee its entire right, title, and interest in and to any Intellectual Property Rights that Partner may acquire in or relating to any of the ABBYY Products (including any rights in derivative works or patent improvements relating thereto), whether acquired by operation of law, contract, assignment, or otherwise.
b. Use of Intellectual Property rights: The use by Partner of any of ABBYY's Intellectual Property Rights is authorized only for the purposes and to the extent contemplated under these Terms and upon termination of the business relationship between the Parties such authorization will cease. Under no circumstance may Partner register, apply for and/or own any domain names or trademarks similar to and/or containing any ABBYY Trademarks, names of ABBYY Products, ABBYY Services or ABBYY companies. Any domain names similar to and/or containing any ABBYY Trademarks, names of ABBYY Products, ABBYY Services or ABBYY companies owned by Partner shall be promptly transferred to ABBYY immediately upon ABBYY’s written request. Any use of such domain names and/or trademarks shall cease immediately upon ABBYY’s written request. Failure of Partner to comply with any of its obligations under this Section 7.b constitutes material breach of these Terms.
c. Partner Trademark License: Partner hereby grants to ABBYY a non-exclusive, royalty-free right, during the Term, to use Partner’s Trademarks on ABBYY promotional literature and marketing materials. When using Partner’s Trademarks, ABBYY shall indicate that Partner is the owner of Partner’s Trademarks. ABBYY acquires no right to Partner Trademarks by their use and may only use any such Partner Trademarks during the Term. All uses of Partner’s Trademarks, and all goodwill associated therewith, will inure solely to the benefit of Partner.
d. Alterations: Unless such actions are explicitly permitted by applicable law, Partner shall not, and shall not allow End User to, reverse engineer, disassemble and/or decompile (get the source code out of the object code) the programs, databases and other Software components, modify the Software, adapt (make changes to the Software aimed to make it function on the End User hardware) or translate the Products, including making changes to the object code of applications and databases of the Product other than those provided for by the Product and described in the Documentation, or remove, change or obscure any copyright, trademark or patent notices that appear on/in Products.
e. No Implied Rights: ABBYY provides the Products to Partner solely for the purpose set forth in these Terms under the express terms of the licenses granted in these Terms. Except for the limited rights and licenses expressly granted under these Terms, nothing in these Terms grants, by implication, waiver, estoppel or otherwise, to Partner or any third party any Intellectual Property Rights or other right, title or interest in or to any of the Products. All uses in these Terms of the terms “sell”, “sale”, “resell”, “resale”, “purchase”, “price”, and the like mean the purchase or sale of a license: (a) in the case of Partner, under these Terms and the EULA for any Products Partner acquires for its own use; and (b) in the case of End Users, under the EULA. Nothing in these Terms grants or conveys, or permits Partner to grant or convey, any ownership right in any of the Products or Third-Party Materials, or any article or copy thereof or Intellectual Property Rights therein.
f. Partner Cooperation and Notice of Infringement: Partner shall, during the Term:
i. use all reasonable means (which shall be no less onerous than those taken by Partner to safeguard its own comparable intellectual property and confidential information) to safeguard the ABBYY Products (including all copies thereof) from infringement, misappropriation, theft, misuse, and unauthorized access;
ii. at ABBYY’s expense, take all such steps as ABBYY may reasonably require to assist ABBYY in maintaining the validity, enforceability, and ABBYY’s ownership of the Intellectual Property Rights in the Products;
iii. promptly notify ABBYY in writing if Partner becomes aware of: (a) any actual or suspected infringement, misappropriation, or other violation of ABBYY’s Intellectual Property Rights in or relating to any of the ABBYY Products; or (b) any claim that any ABBYY Products, including any production, marketing, distribution, licensing, sale, use or other disposition of any Product whether under the ABBYY Trademarks, infringes, misappropriates or otherwise violates the rights of any third party; and
iv. at ABBYY’s sole cost and expense, fully cooperate with and assist ABBYY in all reasonable ways in the conduct of any Action described in Section 7.h, including having Partner’s employees testify when requested and making available for discovery or trial relevant records, papers, information, samples, specimens and the like.
g. Exclusive Right to Bring or Defend Action: ABBYY has the sole right and discretion, but not the obligation, to prevent or abate any actual or threatened infringement, misappropriation, or violation of ABBYY’s or Partner’s respective rights in, and to attempt to resolve any claims relating to, the ABBYY Products, including by:
i. prosecuting or defending any Action of any kind; and
ii. taking any other lawful action that ABBYY, in its sole discretion, believes is reasonably necessary to protect, enforce, or defend the validity of ABBYY’s or Partner’s rights in the Products.
iii. ABBYY has the right to prosecute or defend any such Action in ABBYY’s own name or, if required by applicable law or otherwise necessary or desirable for such purposes, in the name of Partner, and may join Partner as a party to such Action. Partner hereby grants ABBYY an irrevocable power of attorney, coupled with an interest, to sue in Partner’s name and stead for purposes of prosecuting or defending such Actions. ABBYY shall bear all costs and expenses in all such Actions and have the right to exclusive control over the conduct of the Action and be represented by counsel of its own choice. Partner shall and hereby does irrevocably and unconditionally waive any objection to ABBYY’s joinder of Partner to any Action described in this Section 7.h on any grounds whatsoever, including on the grounds of personal jurisdiction, venue, or forum non conveniens.
7. Confidential Information:
a. Partner agrees to maintain Confidential Information in trust and confidence and to use such Confidential Information only as necessary to carry out the purposes of these Terms. Partner shall take reasonable steps to protect the other party's Confidential Information, including:
i. following procedures Partner takes to protect its own valuable confidential information but in any case exercising not less than reasonable care;
ii. limiting disclosure to Partner’s Representatives on a need-to-know basis and informing such Representatives of restrictions on use, reproduction and disclosure by use of non-disclosure agreements, display of confidentiality and proprietary notices and other such instructions and only to Representatives who are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 7;
iii. preventing disclosure to any third party; and
iv. notify the ABBYY in writing promptly of any unauthorized disclosure or use of Confidential Information and cooperate with ABBYY to protect the confidentiality and ownership of all Intellectual Property Rights, privacy rights, and other rights therein.
b. Dissemination of Confidential information: Partner agrees not to disseminate the other's Confidential Information unless expressly authorized in writing by ABBYY, and to return or destroy the original and any copies of written or machine-readable or other tangible Confidential Information if ABBYY so requests. The obligations stated above shall not apply to information that Partner can demonstrate by written or other documentary records (i) is known to Partner or in its possession without an obligation of confidentiality at the time of disclosure by ABBYY, (ii) is or becomes public knowledge without fault of Partner, (iii) is approved for release in writing by ABBYY, (iv) is independently developed by or for Partner without use of or access to the Confidential Information, or (v) is rightfully received by Partner from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality.
c. Compelled Disclosures: If Partner or any of its Representatives is compelled by applicable law to disclose any Confidential Information then, to the extent permitted by applicable law, Partner shall: (i) promptly, and prior to such disclosure, notify ABBYY in writing of such requirement so that ABBYY can seek a protective order or other remedy or waive its rights under Section 7; and (ii) provide reasonable assistance to ABBYY in opposing such disclosure or seeking a protective order or other limitations on disclosure. If ABBYY waives compliance or, after providing the notice and assistance required under this Section 7, Partner remains required by law to disclose any Confidential Information, Partner shall disclose only that portion of the Confidential Information that Partner is legally required to disclose and, upon ABBYY’s request, at the Disclosing Party’s sole cost and expense, 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.
8. Obligations of Partner:
a. Reporting: ABBYY may require Partner to provide specific information such as the End User’s name, address, and contact information required at the time of order to issue the End User’s license.
b. ABBYY inquiries: Partner will promptly respond to all inquiries from ABBYY with regard to the subject matter of these Terms.
c. Promotion of the Products: Partner will actively participate in promotion of Products at its own expense within the Territory. Partner will, at its own expense:
i. Provide adequate contact and follow-up with End Users and prospects on a regular basis;
ii. Advertise, promote, market, and distribute the Products to End Users using Partner’s reasonable efforts to maximize the distribution of, licensing revenues from, and End User satisfaction with, the Products, including by placing Products in Partner's catalogues, on websites and feature Products in trade shows;
iii. Assist ABBYY in assessing customer’s requirements for Products including modifications and improvements and submit market research information;
iv. Maintain sufficient knowledge of the industry and Competitive Products (including specifications, features and benefits) so as to be able to explain in detail to End Users: (a) the differences between the Products and Competitive Products; and (b) information on standard protocols and features of the Products;
v. Provide to ABBYY for approval representative samples of materials before publicly disseminating or using any advertising, promotional or marketing such materials for any of the Products or Services. Approval of such materials may be given or withheld by ABBYY’s in its sole discretion;
vi. Give ABBYY prompt written notice of and investigate and address any notice, complaint or claim of which Partner becomes aware concerning any data security breach, personal injury, property damage, or other injury alleged to have been caused, in whole or in part, by any Product or Service, or any act or omission of Partner under or in connection with this Agreement;
vii. Conduct business in accordance with applicable law;
viii. Conduct business in a manner that is consistent with good business practice and reflects favorably at all times on the Products and Services and the good name, goodwill, and reputation of ABBYY.
d. Resale Under EULA: Partner may only sell the Products under the EULA and ensure that End Users receive, are aware of, and accept the terms and conditions of the EULA before using the Products and (i) promptly report to ABBYY in writing any actual or suspected EULA non-compliance; (ii) at ABBYY’s request and discretion, enforce, or cooperate with ABBYY in ABBYY’s enforcement of, the terms of the EULA against End Users and any other rights or remedies that may be available at law, in equity, or otherwise in connection with the EULA, and (iii) promptly pay to ABBYY any amounts recovered from End Users as a result of such enforcement or any other actual or suspected EULA non-compliance.
e. Public Representations: Under no circumstances will Partner engage in any activity that ABBYY may reasonably deem to be detrimental to the reputation and/or good name of ABBYY or any of the Products or Services. Partner shall not commit ABBYY to any contracts with any party whatsoever.
f. Services by Partner: Partner will offer Product support, professional services and training for Products. Partner will provide properly trained personnel to provide such services. Properly trained personnel means appropriately trained and certified personnel through an onboard Certification training as outlined in Partner Program. For avoidance of doubt, Certification training of End Users on Product functionality and use may be performed only by ABBYY and not by Partner.
g. Certification for Partner, Partner Sales Enablement: Partner shall cause its technical personnel to attend and complete appropriate ABBYY Certification training programs (when available) for each of the Products Partner intends to resell. Partner shall ensure that trained and certified personnel are available to support its sales and negotiation efforts and also to handle support of Products throughout the Term and so long thereafter that it has any responsibility to support its End Users. Once new versions of Products (major updates) are available and launched during the Term, Partner’s personnel shall obtain training on the new version by attending ABBYY’s Re-certification training within six (6) months after the launch of the new version of the Product. In addition, ABBYY may offer Partner with sales enablement training. Partner shall attend sales enablement trainings at least once a year. In addition to remaining current on Certification, Partner must take part in the yearly training events ABBYY offers in the relevant jurisdictions within the Territory.
h. 1st - Line Technical Support: For each ABBYY Product that it resells, Partner shall provide End Users with primary pre-sale and post-sale technical support (“1st Line Technical Support”) and shall state in any agreement with an End User that such End User shall obtain support directly from Partner. To this end, Partner shall provide its End Users with telephone and email access to qualified technicians within the Territory. Partner shall provide such support during local normal business hours (08:00-18:00 recommended) on business days in the relevant Territory for End Users using standard level of SM Services or during such other hours as applicable to other relevant level of SM Services for End Users using such other level(s) of SM Services. Partner will retain and have available trained and specialized technical staff sufficient to assure End User satisfaction. If End Users contact ABBYY directly for technical support, ABBYY will investigate the reasons why End User contacted ABBYY directly and not via Partner’s 1st Line Technical Support.
In providing 1st Line Technical Support Partner's qualified technician shall: (i) Gather End User information in order to determine End User’s issue; (ii) Provide answers to simple questions (for example in connection with Product installation, activation, usage, application menus and features etc.) and be able to resolve username and password problems and to verify correct hardware and software set up, etc.; and (iii) In general be able to provide a complete and accurate initial problem diagnosis so that any required problem resolution can begin immediately upon request to ABBYY for SM Services.
i. Fair Credit Standing: Partner shall at all times maintain a fair credit standing and promptly discharge all payments due to ABBYY. If Partner is unable to meet this obligation it shall immediately inform ABBYY. Partner shall follow guidance from ABBYY to resolve to ABBYY’s reasonable satisfaction any issues with Partner’s credit standing which actions may include advising relevant Leads/End Users to process their orders directly with ABBYY.
j. Anti-Bribery and Anti-Corruption: Partner (and its officers, directors and employees, and any third parties acting on Partner’s behalf, at its direction or under its control in connection with these Terms and its appointment in accordance with Section 2) shall comply with all applicable laws relating to bribery and corruption, including: (i) the U.S. Foreign Corrupt Practices Act; (ii) The Bribery Act 2010 of the United Kingdom; ; (iii) ABBYY’s country of residence acts on anti-corruption practices; and (iv) the anti-bribery and anticorruption laws of any country from which Partner will perform any activities in connection with these Terms(collectively, the “ABAC Laws”).
i. Partner represents and warrants that: (a) neither Partner nor any of its officers, directors, employees, or any third parties acting on Partner’s behalf, at its direction or under its control in connection with these Terms and its appointment in accordance with Section 2, has paid, offered, funded, approved or otherwise facilitated, promised or provided anything of value to any person in order to improperly influence them in the performance of their legal or contractual duties in connection with Partner’s performance of activities in connection with these Terms, and shall not do so during the performance of activities in connection with these Terms; and (b) it shall maintain policies, procedures and guidelines that are applicable to all members of its corporate group and personnel and are intended and designed to prevent them doing or failing to do any act or thing that contravenes any ABAC Law or requirement of a regulatory authority relating to anti-bribery and corruption or anti-money laundering.
ii. If Partner learns of or has reason to know of any payment, offer or agreement relating to any activity in connection with these Terms that is contemplated or that has occurred and represents or could represent a violation of an ABAC Law, Partner shall promptly notify ABBYY in writing.
iii. ABBYY may take reasonable steps to avoid, mitigate or investigate an actual or potential violation of any ABAC Law, including by: (a) performing due diligence on Partner; (b) in the case of an actual violation, exercising its rights of termination pursuant to the provisions of Section 12. Partner agrees to cooperate with ABBYY as it exercises its rights hereunder.
k. Trade Restrictions: Partner acknowledges that ABBYY Products, Documentation, related software and any derivatives thereof are subject to the export control and sanctions laws and regulations of the United States and other countries that may prohibit or restrict export, reexport, transfer to, access or use by certain restricted persons or in, from or involving certain restricted countries or territories, including but not limited to the US Export Administration Regulations, International Traffic in Arms Regulations and the Office of Foreign Assets Control regulations (together, “Trade Restrictions”). Partner shall comply with all applicable Trade Restrictions in performance of this Agreement. Partner represents that Partner is not a Restricted Party. “Restricted Party” means any person or entity that is: (i) located or organized in a country or territory subject to comprehensive U.S. sanctions (currently including Cuba, Crimea, Iran, North Korea, Syria) (“Sanctioned Territory”), (ii) owned or controlled by or acting on behalf of the government of a Sanctioned Territory or Venezuela; (iii) an entity organized in or a resident of a Sanctioned Territory, (iv) identified on any list of restricted parties targeted under US, EU or multilateral sanctions, including, but not limited to, the U.S. Department of the Treasury, Office of Foreign Assets Control’s (“OFAC”) List of Specially Designated Nationals and Other Blocked Persons, the OFAC Sectoral Sanctions List, the US State Department's Nonproliferation Sanctions and other lists, the U.S. Commerce Department’s Entity List or Denied Persons List located at https://www.export.gov/article?id=Consolidated-Screening-List, the consolidated list of persons, groups and entities subject to EU financial sanctions from time to time; or (v) owned or controlled by, or acting on behalf of, any of the foregoing. Partner shall not and shall not permit any End User to access, use, or make ABBYY Products, Documentation, related software and any derivatives thereof available to or by any Restricted Party or to, from, or in connection with any Sanctioned Territory. Partner shall not host technical data or software controlled for export, reexport, or in-country transfer under Trade Restrictions on ABBYY Products without first receiving express consent from ABBYY. Partner expressly agrees and acknowledges that ABBYY's ability to perform under this Agreement is subject to ABBYY’s compliance with Trade Restrictions. Partner agrees that any refusal or failure by ABBYY to perform its obligations hereunder on account of compliance with Trade Restrictions will not constitute a breach of any obligation under this Agreement and hereby waives any and all claims against ABBYY for any legal recourse, including, but not limited to, injunctive or declarative relief, loss, cost or expense, including consequential damages, that Partner may incur or be subject to by virtue of such refusal or cancellation. Partner shall not do or omit to do anything that may cause ABBYY, in ABBYY’s reasonable judgment, to be in breach of applicable Trade Restrictions, and shall protect, indemnify, and hold harmless ABBYY from any claim, damages, liability, costs, fees and expenses incurred by ABBYY as a result of the failure or omission of Partner to comply with such Trade Restrictions. Failure by Partner to comply with this Section shall constitute a material breach of this Agreement.
9. Obligations of ABBYY:
a. Marketing materials: ABBYY may prepare both digital and/or printed Marketing Materials and make those available for use by Partner.
b. Partner inquiries: ABBYY will promptly respond to all reasonable inquiries from Partner concerning matters pertaining to these Terms.
c. New Product Versions: ABBYY may inform Partner of new Product versions and new Product developments or modifications of Products. ABBYY has no obligation to continue marketing any Product.
d. Marketing: ABBYY may provide marketing and technical assistance to Partner.
e. Support and Maintenance (SM) Services:
i. Technical support from ABBYY. For any End User that purchases SM Services from Partner or has a subscription in good standing for the Product, Partner shall provide 1st Line Technical Support and, provided that Partner is current on payments for SM Services to ABBYY for such End User, ABBYY will provide SM Services in accordance with its then current SM Terms. In the event of a conflict between the terms of this Section 10.e of the Agreement and then-current SM Terms, the terms of this Section 10.e of this Agreement shall prevail. ABBYY is not be obligated to provide any SM Services to or for End Users who are not current on payments for SM Services and may refer such End Users who reach out to ABBYY directly to Partner for customer and technical support.
ii. Level of technical support from ABBYY. If Partner is unable to answer an End User’s question regarding Products and/or Services after using reasonable efforts (which shall include, at a minimum, reviewing Documentation), Partner may send a support request to ABBYY in accordance with the SM Terms and the level of SM Services applicable to such End User shall apply. For any NFR Product ABBYY will provide to Partner standard level of SM Services or such other level of SM Services as applicable to Partner in accordance with Partner Program. For any trial Product only standard level of SM Services will be provided. ABBYY personnel who provide SM Services are located across the globe in order to ensure availability during the hours outlined in the Support Terms.
f. Training and Certification Services: ABBYY offers training Services, custom training and Certification training as described on ABBYY’s website on a regular basis. Training Services, custom training and Certification are all subject to availability of ABBYY personnel.
g. Professional Services: To order standard ABBYY professional services at time and materials pricing, Partner may enter into an ABBYY Professional Services Agreement with ABBYY, which is subject to separate negotiations and dependent upon the availability of ABBYY resources. In the event of any conflict arising between the terms and conditions of this Agreement and those of any separately negotiated professional services agreement, the terms of the professional services agreement shall prevail as to the provision of the professional services.
IF THERE IS NO SEPARATE AGREEMENT FOR THE PROVISION OF PROFESSIONAL SERVICES BETWEEN PARTNER AND ABBYY, ABBYY WILL NOT PROVIDE ANY PROFESSIONAL SERVICES.
a. Indemnity by Partner: Partner shall indemnify, defend, and hold harmless ABBYY and its Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and permitted assigns (each, a “ABBYY Indemnitee”) from and against any and all Losses incurred by an ABBYY Indemnitee in connection with an Action arising out of or related to:
i. any representations or statements or omissions made by Partner in connection with the marketing or resale of ABBYY Products or otherwise in connection with these Terms; or
ii. provision by Partner of goods and/or services or any documentation other than those provided by ABBYY to Partner;
iii. provision by Partner of any warranties, product guarantees, or service guarantees to its End User(s) different than those provided by ABBYY to Partner in the SM Terms or otherwise, or contained in EULA;
iv. Partner’s failure to meet its obligations hereunder or Partner’s breach of these Terms; or
v. Partner’s negligence or willful misconduct; or
ABBYY may participate in the defense of any such Action by counsel of its choosing. Partner shall not make admissions (except under compulsion of law), agree to any settlement or otherwise compromise the defense or settlement of any claim or suit of action without ABBYY’s prior written approval, which shall not be unreasonably withheld. ABBYY has the right to control and direct the investigation, defense and settlement of any claim made against ABBYY and may select and retain its own counsel.
11. Data Protection
a. Partner will comply with all applicable requirements of applicable Data Protection Laws. This Section 12 is in addition to, and does not relieve, remove or replace, a Party's obligations or rights under the Data Protection Laws.
b. Partner acknowledges that they have implemented and will maintain for the Personal Data provided to them by ABBYY appropriate technical, administrative and physical security measures as provided by applicable Data Protection Laws to protect such Personal Data against accidental loss, destruction, or alteration; unauthorized disclosure or access; or unlawful destruction.
c. Partner must notify and, where required by applicable law, obtain (or ensure that each End User obtains) the written consent of, all End User end users that their information may be transferred or disclosed to ABBYY for the purposes of these Terms. Partner must transfer to ABBYY any Personal Data under these Terms in accordance with ABBYY’s instructions and in compliance with Data Protection Laws. ABBYY does not accept responsibility for the lawfulness of such transfers. ABBYY will keep and manage all such received Personal Data with reasonable care and with the security measures required by applicable Data Protection Laws.
d. The parties acknowledge that:
a) where Partner processes any personal data on the ABBYY's behalf when performing its obligations under these Terms, the ABBYY is the controller and the Partner is the processor for the purposes of the Data Protection Laws. ABBYY retains control of the personal data. For instances, Partner shall process personal data on behalf of ABBYY for the purposes specified in these Terms, including when ABBYY shares personal data with the Partner and receives personal data from Partner when such personal data was collected under ABBYY’s instructions for the purposes of these Terms.
b) Any Personal Data transferred to ABBYY by Partner under these Terms in accordance with ABBYY instructions shall be lawfully transferred in compliance with Data Protection Laws. Partner will obtain necessary consents. ABBYY shall not accept responsibility for the lawfulness of such transfers. All such received personal data shall be kept and managed by ABBYY with due care and with the security measures according to the Data Protection Laws. If Partner breaches this Section 11 of these Terms, ABBYY has the right to stop Lead Management and to stop marketing support until Partner sends any required information with respect to the End Users.
c) the Partner shall, in relation to any personal data processed in connection with the performance by the Partner of its obligations under these Terms process that personal data only on ABBYY’s documented written instructions (as set out in this Section 11) unless the Partner is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Partner to process personal data (Applicable Laws). Where the Partner is relying on Applicable Laws as the basis for processing personal data, the Partner shall promptly notify the ABBYY of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Partner from so notifying ABBYY;
d) Partner shall ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).
e) ABBYY shall be entitled to request that Partner, subject to the Data Protection Laws, rectifies, deletes, blocks and makes available personal data at Partner’s cost. Partner shall promptly comply with any of ABBYY’s request or instruction requiring Partner to amend, transfer, delete or otherwise process Personal Data, or to stop, mitigate or remedy any unauthorized processing.
f) Partner will without undue delay notify ABBYY if it becomes aware of any Personal Data Breach (a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise processed) in accordance with applicable Data Protection Laws. Immediately following any Personal Data Breach, the parties will coordinate with each other to investigate the matter. Partner will reasonably co-operate with ABBYY in ABBYY's handling of the matter. Partner will not inform any third party of any Personal Data Breach without first obtaining ABBYY's prior written consent, except when required to do so by Data Protection Laws.
e. Scope, nature and purpose of processing by the Partner, the duration of the processing and the types of Personal Data and categories of data subject:
i. Scope: as described in the Section 2 of these Terms.
ii. Nature: including but not limited to collection, structuring, modification, storage, consultation, disclosure by transfer, erasure, communication.
iii. Purpose of processing: as described in the Section 2 of these Terms.
iv. Duration of the processing: for the duration of these Terms.
v. Types of Personal Data: including but not limited to the name, contact information (e.g. email, phone number, address), job title, company information.
vi. Categories of data subject: including, but not limited to leads, potential customers, customers.
vii. ABBYY consents to the Partner appointing third-party processors of Personal Data under these Terms. The Partner confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement and in either case which the Partner undertakes reflect and will continue to reflect the requirements of the Data Protection Laws. As between ABBYY and the Partner, the Partner shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this Section 11.
12. Term and Termination:
a. Term. The term of each Quote shall be the License/Service term specified in such Quote.
b. Termination for Breach. If Partner materially breaches these Terms or any Quote hereunder, ABBYY may immediately terminate all Quotes hereunder or just the affected Quote. ABBYY’s right to suspend or cease entirely performance for non-payment by Partner shall not be considered a breach of these Terms or any Quote.
c. Effect of Termination. Immediately upon the termination of a Quote for Partner’s material breach, the licenses granted hereunder for the relevant Products/Services shall terminate, and Partner shall be required to return (or with ABBYY’s consent destroy and certify as to such destruction in writing) any and all copies of Confidential Information of ABBYY provided in connection with the respective Qupte. Any obligation of either party that actually accrued prior to termination or expiration, including without limitation any payment due to ABBYY, shall survive termination of a Quote. All amounts prepaid by Partner that are non-cancelable and non-refundable on or prior to the effective date of the termination shall be retained by ABBYY.
d. Transition of support obligations: Upon termination of this Agreement, Partner agrees to cooperate in good faith with the transition of support obligations to ABBYY and shall ensure to the best of its knowledge that it provides ABBYY current contact information for all End Users that require continued SM Services for Products. ABBYY will provide such End Users the SM Services in accordance with the SM Terms. Partner’s agreements with its End Users must provide that any SM Services provided by ABBYY will be provided in accordance with the SM Terms. The details of the transition of support obligations will be agreed upon in good faith between the Parties.
e. Survival: The provisions set forth in the following Sections, and any other right or obligation of the Parties in these Terms that, by its nature, should survive termination or expiration of these Terms, will survive any expiration or termination of these Terms: 1 (Definitions); 4.f (Payment Terms; Taxes); 5 (Warranties); 6 (Intellectual Property Rights (except for any license granted under that Section); 7 (Confidential Information); 10 (Indemnification); 12.e (Effect of Termination); 12.d (Survival); 13 (Limitation of Liability); 14 (General Provisions).
13. Limitation of Liability:
a. If you entered into a Quote with any ABBYY legal entity other than ABBYY Europe GmbH, the following rules shall apply instead of section 13(b):
a) IN NO CASE SHALL ABBYY, ITS AFFILIATES, AND ITS AND THEIR REPRESENTATIVES BE LIABLE FOR INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, EXEMPLARY, TREBLE, CONSEQUENTIAL OR SPECIAL DAMAGES (INCLUDING THE LOSS OF BUSINESS, LOSS OF USE, REVENUES, PROFITS OR GOODWILL) WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY.
b) IN NO EVENT SHALL ABBYY'S TOTAL AND CUMULATIVE LIABILITY UNDER THESE TERMS FOR ANY AND ALL CLAIMS ARISING FROM OR RELATED TO THESE TERMS AND ANY QUOTES HEREUNDER, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL FEES PAID BY PARTNER UNDER THESE TERMS FOR PRODUCTS IN THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST INCIDENT FROM WHICH THE LIABILITY ALLEGEDLY AROSE, EVEN IF ABBYY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
c) THESE LIMITATIONS SHALL APPLY DESPITE THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PROVISIONS OF THIS SECTION ALLOCATE RISKS UNDER THIS AGREEMENT BETWEEN ABBYY AND PARTNER. ABBYY'S PRICING REFLECTS THIS ALLOCATION OF RISKS AND LIMITATION OF LIABILITY. PARTNER ACKNOWLEDGES AND AGREES THAT THIS LIMIT ON LIABILITY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT AND THAT ABBYY WOULD NOT BE ABLE TO PROVIDE PRODUCTS / SERVICES WITHOUT SUCH LIMITS.
b. If Partner entered into a Quote with ABBYY Europe GmbH, the following rules shall apply instead of section 13(a) to the fullest extent permitted by applicable law:
a) ABBYY’s statutory liability for damages shall be limited as follows: (1) ABBYY shall be liable only up to the amount of damages as typically foreseeable at the time of entering into the purchase agreement in respect of damages caused by a slightly negligent breach of a material contractual obligation required for the appropriate execution of the agreement and (2) ABBYY shall not be liable for damages caused by a slightly negligent breach of a non-material contractual obligation. ABBYY shall not bear any liability beyond the limits set above in this section 13(b), especially not in cases of consequential damages, loss of revenue or profits, punitive damages or any other special damages.
b) The above limitation of liability also applies in respect of the personal liability of the employees, representatives and agents of ABBYY.
c) The limitation of liability set forth above shall not restrict any mandatory statutory liability, in particular, to liability under the German Product Liability Act, liability for assuming a specific guarantee, liability for damage arising from a grossly negligent breach of duty or liability for culpably caused injuries to life, body or health.
14. General Provisions:
a. Governing Law and Jurisdiction:
ABBYY USA Software House, Inc. If Partner entered into a Quote with ABBYY USA Software House, Inc., these Terms 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 these Terms shall be brought exclusively in a state or federal court of competent jurisdiction situated in Santa Clara County, California and Partner 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 these Terms.
ABBYY Europe GmbH. If Partner entered into a Quote with ABBYY Europe GmbH, these Terms shall be governed by and construed in accordance with the laws of the Federal Republic of Germany excluding the Convention for the International Sale of Goods. The parties, if Partner is a merchant, a legal person under public law, or a special asset (Sondervermögen) under public law, shall submit any and all disputes, controversies or differences that in the opinion of a party cannot be settled amicably, to the court of Munich, Germany. This clause shall in no event be construed so as to deprive a party to institute interim injunction proceedings at a different court of another country.
ABBYY Pty. Ltd. If Partner entered into a Quote with ABBYY Pty. Ltd., these Terms shall be governed by and construed in accordance with the laws of the State of New South Wales, Australia, without regard to or application of its conflicts of law principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms. Any action or proceeding arising out of or relating to these Terms shall be brought exclusively in a state or federal court of competent jurisdiction situated in New South Wales, Australia, and Partner consents to the exclusive personal jurisdiction of such courts for such purpose.
ABBYY Japan Co. Ltd. If Partner entered into a Quote with ABBYY Japan Co. Ltd., these Terms shall be governed by and construed in accordance with the laws of Japan, without regard to or application of its conflicts of law principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms. Any action or proceeding arising out of or relating to these Terms shall be brought exclusively in a state or federal court of competent jurisdiction situated in Tokyo District Court, and Partner consents to the exclusive personal jurisdiction of such courts for such purpose.
ABBYY UK Limited, ABBYY Emerging Markets Limited, ABBYY Solutions Ltd, ABBYY Singapore Pte. Ltd. If Partner entered into a Quote with either ABBYY UK Limited, ABBYY Emerging Markets Limited, ABBYY Solutions Ltd or ABBYY Singapore Pte. Ltd., these Terms shall be governed by and construed in accordance with the laws of England and Wales, without regard to or application of its conflicts of law principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms. Any dispute, controversy or claim arising out of or in connection with these Terms, or the breach, termination or invalidity thereof shall be finally settled by arbitration in accordance with the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce. The arbitral tribunal shall be composed of three arbitrators. The seat of arbitration shall be in Stockholm, Sweden. The language to be used in the arbitral proceedings shall be English.
b. Assignment: Without ABBYY’s express prior written consent, Partner may not assign or transfer any of its rights or delegate any of its obligations under these Terms whether by, merger, acquisition, consolidation, sale of a business or stock, operation of law, change of control or beneficial ownership, or otherwise. Any such attempted transfer, delegation, or assignment in violation of this Section 14.b is without force or effect and is void ab initio. Except as otherwise provided herein, these Terms shall be binding upon and shall inure to the benefit of the Parties and their respective successors and assigns. If Partner is subject to a change of control in favor of a direct competitor of ABBYY, ABBYY may terminate the agreement upon written notice.
c. Relationship of the Parties: Nothing herein shall be construed to create a joint venture or partnership between the Parties hereto or an employer/employee or agency relationship. These Terms do not create any franchise, dealership, agency, or business opportunity (each, a “Franchise”) relationship between the Parties. Partner shall be an independent contractor pursuant to these Terms. Neither Party hereto shall have any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement, or undertaking with any third party. Partner acknowledges that it does not and will not offer or sell Products under a business or marketing plan or system prescribed by ABBYY and that Partner sells Products at prices set solely by Partner. If any provision of these Terms is deemed to create a Franchise relationship, or Partner alleges such a relationship with ABBYY arising out of or in connection with these Terms, ABBYY may immediately terminate these Terms or, at ABBYY’s discretion, the Parties will negotiate in good faith to modify these Terms so as to reflect as closely as possible their original intent in entering into these Terms in order that the transactions contemplated hereby be consummated as independent contractors and not as part of a Franchise relationship. Without prejudice to the foregoing or any other provision in these Terms, Partner hereby waives and relinquishes to the full extent permissible under applicable law any rights or claims under Franchise or similar laws arising out of or in connection with these Terms. All financial and other obligations associated with each Party's business are the sole responsibility of such Party. All agreements between Partner and End Users are Partner's exclusive responsibility except as may be specifically agreed between the Parties in a written agreement executed by their authorized representatives.
d. Entire Agreement: These Terms (along with any and all associated quotes) is the entire agreement between the Parties as to the matters set forth herein. These Terms supersede all previous oral and written communications, representations, discussions, negotiations, proposals, agreements and understandings regarding these matters, including any marketing materials or documentation provided by ABBYY prior to the execution of the relevant Quote, unless specifically referred to and incorporated in these Terms. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter these Terms. Notwithstanding the foregoing, if any conflict arises between the terms and conditions of any prior, concurrently or subsequently issued purchase order (or any other purchase or sales document) of Partner and these Terms and/or Quote, the parties hereby agree that the Terms and/or Quote shall control. These Terms govern relationship between the Parties until a written agreement on the same subject matter is entered into by the Parties.
e. Modifications of this Agreement: ABBYY may at its sole discretion change these Terms from time to time, provided however that the version of the Terms that were in effect on the effective date of the particular Quote shall govern such Quote.. Although Partner may use its standard purchase order form and ABBYY may use its standard order acknowledgement and invoice forms, the terms and conditions of these Terms will prevail over such forms, and any additional, inconsistent, conflicting, or different terms in such forms will be void, and of no force or effect.
f. Severability: If any part of these Terms is found invalid, illegal, or unenforceable, it will not affect the validity of the balance of these Terms, which shall remain valid and enforceable according to its terms. On such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify these Terms so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible. These Terms shall not prejudice the statutory rights of any party dealing as a consumer.
g. Interpretation: For purposes of these Terms, (a) the words "include," "includes," and "including" are deemed to be followed by the words "without limitation;" (b) the word "or" is not exclusive; and (c) the words "herein," "hereof," "hereby," "hereto," and "hereunder" refer to these Terms as a whole. Unless the context otherwise requires, references herein: (x) to sections, schedules, and exhibits mean the sections of, and schedules and exhibits attached to, these Terms; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. These Terms shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The schedules and exhibits referred to herein shall be construed with, and as an integral part of, these Terms to the same extent as if they were set forth verbatim herein. The headings in these Terms are for reference only and shall not affect the interpretation of these Terms.
h. Force majeure: If the provisions of these Terms or any obligation hereunder are prevented, restricted or interfered with by reason of circumstances beyond the reasonable control of the Party obliged to perform it, including without limitation acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, global pandemics, embargoes or blockades in effect on or after the Effective Date, national or regional emergency, passage of law or any action taken by a governmental or public authority, including imposing an export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation (“Force Majeure Event”), the Party so affected upon giving prompt notice to the other Party, shall be excused from those requirements or obligations to the extent of the prevention, restriction or interference but the Party so affected shall use its commercially reasonable efforts to avoid or remove such causes of non-performance and shall resume those requirements or obligations as soon as possible and as far reasonably practicable after such causes are removed or diminished. Notwithstanding the foregoing, neither Party shall be excused from its payment obligations, and any unavoidable delays caused by a Force Majeure Event shall serve only to extend the timing for payment but in no event longer than ten (10) business days unless the Parties agree otherwise in writing on a case-by-case basis. Either Party may terminate these Terms if a Force Majeure Event affecting the other Party continues substantially uninterrupted for a period of sixty (60) days or more.
The agreed delivery date for Products shall be extended appropriately in the event of delays resulting from strikes/lockouts, statutory or official order (import/export restrictions), Force Majeure Event or in the event of inadequate (or absence of) necessary cooperation by Partner.
i. Waiver: Failure of either Party to enforce compliance with any provision of these Terms 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 of any of the terms and conditions of these Terms 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 these Terms shall be without prejudice to any other right or remedy provided by law or equity.
j. Notices: All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and addressed to the Parties at the addresses set forth on the first page of these Terms (or to such other address that may be designated by the receiving Party from time to time in accordance with this Section 14.j). All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in these Terms, a Notice is effective only (i) upon receipt by the receiving Party, and (ii) if the Party giving the Notice has complied with the requirements of this Section 14.j.
k. Attorneys’ Fees: In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either Party against the other Party arising out of or related to these Terms, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing Party.
l. No Third-Party Beneficiaries: These Terms are for the sole benefit of the Parties hereto, which in the case of ABBYY includes its Affiliates, and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person, other than ABBYY’s Affiliates, any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of these Terms.
THIS VERSION OF THE TERMS IS EFFECTIVE AS OF September 12, 2023.