ABBYY Terms and Conditions for professional services
- Data Processing Addendum
- Services; statement of work
- Payment terms
- Acceptance, rejection, and correction
- Representations and warranties
- Limitation of liability
- Defense and indemnification by abbyy
- Defense and indemnification by customer
- Intellectual property
- Residual information
- Term and termination
- Relationship of the parties
- Choice of law & venue
These ABBYY Terms and Conditions for Professional Services (“Terms”) form an integral part the contract between ABBYY and the customer of such professional services (“Customer”) when the Terms are referenced in a Quote or a Statement of Work. Both ABBYY and Customer will be referred to as “the parties”.
Customer’s general terms of business or purchase order terms shall not bind ABBYY unless ABBYY has explicitly accepted them in writing. Any correspondence from the Customer containing or referring to the Customer’s general terms of business shall not constitute ABBYY’s acceptance of the applicability to the contract of such general terms of business.
The following terms shall have the definitions set forth below for purposes of these Terms and any and all Quotes and Statements of Work between the Parties:
a. “ABBYY” means the ABBYY legal entity specified in the relevant Quote or SOW with whom Customer have entered into these Terms.
b. “Affiliate” means any affiliate of the 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.
c. “Cloud Service” means ABBYY software-as-a-service products that are the subject of the Professional Services to be provided under a Quote or SOW, including all associated proprietary technology (such as software, hardware, services, processes, algorithms, user interfaces, know-how, techniques, deigns, and other tangible or intangible technical material or information), as well as ancillary online or offline services, audio, visual and text information.
d. “Confidential Information” means all information relating to Disclosing Party’s products or services (including designs, formulas, developmental or experimental work, future products, processes, databases, schematics, other original works of authorship, software code, inventions, algorithms, know-how, and ideas and all other business, technical, customer, pricing and financial information (such as product roadmaps, business plans, customer lists, metrics or benchmarking data); other subject matter related to Disclosing Party’s research and development, purchasing, finance, marketing, promotion, distribution and selling activities) that the Disclosing Party provides to the Receiving Party either in writing marked as “confidential” or with a similar legend or that a reasonable business person would consider to be confidential.
e. “Customer Data” means any data, information, or material (including but not limited to specifications, images, scanned documents or photos, Open Source Software) made available by Customer or its representatives, agents, consultants to ABBYY in the course of provision or performance of the Services.
f. “Data Protection Laws” means all applicable local, state, national, and foreign data protection, data privacy, electronic communications and data security laws, treaties, or regulations.
g. “Deliverables” means the output of the Professional Services performed under these Terms that is delivered to Customer, as specified in a particular Statement of Work.
h. “Derivative Works” means a work based upon any ABBYY software products or other Confidential Information, such as a revision, enhancement, extension, correction, modification, translation, abridgement, condensation, expansion, or any other form in which such ABBYY Intellectual Property may be recast, transformed or adapted. For purposes hereof, the term Derivative Works includes any compilation in which such ABBYY Intellectual Property may be incorporated.
i. “Disclosing Party” means the party disclosing Confidential Information.
j. “Intellectual Property” means any and all inventions (whether or not patented or patentable), discoveries, materials, tools, software (whether source code, object code or other executable code, or otherwise), works of authorship, know-how, technical information, trade secrets, work product, methods, processes, designs, schematics, and other forms of technology.
k. “Intellectual Property Rights” means copyrights, trade secrets, patents, patent applications, moral rights, contract rights, trademarks and service marks (registered or otherwise), and other proprietary rights to Intellectual Property.
l. “Personal Data” means any part of Customer Data that comprises information relating to an identified or identifiable individual.
m. “Product” means Software and/or Cloud Service.
n. “Product Agreement” means the agreement that governs the license terms and conditions for the Product. The Product Agreement may be executed prior to or after commencement of the Services.
o. “Professional Services” or “Services” means the consulting, customizing, training and other professional services specifically described in a Quote or in a SOW as the Professional Services to be provided by ABBYY to Customer in connection with Customer’s current or future use of separately licensed Product. The term “Professional Services” or “Services” when used in these Terms or any Quote or SOW hereunder does not include any maintenance or support services for the Product, which services are made available to Customer separately in connection with its licensing of Product.
p. “Quote” means a document such as quote issued by ABBYY or a purchase order accepted by ABBYY in writing with respect to the Services except for Services for which final acceptance is required, and containing a description of the Services to be performed.
q. “Receiving Party” shall be the party receiving Confidential Information.
r. “Service Fees” means the fees to be charged for the Services performed hereunder, including without limitation any expenses necessarily incurred by ABBYY in the performance of such Services for out of pocket expenses, travel, daily allowance and lodging that are approved by Customer, as specified in the applicable Quote or Statement of Work.
s. “Software” means the ABBYY software product(s) that are the subject of the Professional Services to be provided under Quote or SOW, and may from time to time include specified Third Party Software. The Software is not licensed to Customer hereunder.
t. “Statement of Work” or “SOW” means the document containing a detailed description of the Services to be performed (together with any other related information that is necessary in order for the Services to be performed) and the scope of the Services to be provided to Customer in connection with its current or future use of separately licensed Product. Each Statement of Work shall reference the terms of these Terms, and shall be signed by both of the parties before ABBYY assumes any obligations under such Statement of Work.
u. “Third Party Software” means any third party software application specifically identified in a particular Statement of Work for which Services are included as part of the project defined in that Statement of Work. The Third Party Software may be subject to a separate software license agreement with the original third party supplier (a “Third Party License”) or may have been licensed to Customer pursuant to the Product Agreement between ABBYY and Customer along with the Product.
2. SERVICES; STATEMENT OF WORK
a. Services to be Performed.
By signing a Quote or SOW, Customer engages ABBYY to provide Professional Services upon the terms set forth herein and as specifically set forth in such Quote or SOW for the Services project identified therein. The parties may enter into one or more Quotes or SOWs referencing these Terms, each of which shall specify the scope of the Services to be performed, the pricing for the covered Services, and may specify the nature of the tasks and any Deliverables, milestones for Delivery where there are defined milestones for the particular project, travel expectations, the location for the performance of the Services, the Product with respect to which the Services are to be performed, and any special requirements for the Deliverables or the Services such as functional specifications, special materials or resource requirements.
ABBYY’s completion of some or all of the Services may be subject to Customer providing certain Customer Data. If so, those items may be set forth on the Statement of Work. Time schedules or milestones, and ABBYY’s allocation of its resources, assume that Customer will provide, at or before the time that it is needed, anything required for ABBYY to perform the Services, but any time schedule or milestone date specified in a particular Quote or SOW is approximate and is subject to change. Similarly, the timing for the provision of Services also assumes that none of the applicable specifications or requirements will change, and that information provided by Customer (including without limitation any Customer Data) was accurate. Accordingly, any dates or time periods relevant to the provision of Services or delivery of Deliverables shall be appropriately and equitably extended to account for delays resulting from such changes and for delays otherwise caused by Customer or otherwise outside of ABBYY’s reasonable control.
c. Changes to the Statement of Work
If either party wants to make changes to the Services in a given Statement of Work, the parties must enter into a written amendment to this SOW to agree upon such changes. Any change may impact terms for the Services, such as extend the time for the Services to be delivered, and/or result in higher costs. No work on the changes to the Services shall commence until such amendment has been signed.
d. Additional Services
Customer may also engage ABBYY to provide additional Services that are separate from those already provided for in existing Quote(s) or Statement(s) of Work, by the completion and execution of separate and additional Quote(s) or Statement(s) of Work referencing and incorporating by such reference these Terms.
Delivery of Services and delivery of the related Deliverables is deemed to occur as follows (“Delivery” or its variants):
(i) In the case of Services performed on a time and materials basis, the Services are deemed Delivered as and when the Services are performed. In such case, the Services will be billed monthly for the Services performed in the month just ended prior to the month of invoice, including any expenses incurred in accordance with those Services that are approved by Customer.
(ii) In the case of Services performed on a fixed price basis, the Services and Deliverables, if any, associated with a particular milestone payment or specified for delivery in connection with a particular task or stage of the project outlined in the relevant Quote or SOW, along with the associated Services, shall be deemed to have been Delivered when ABBYY provides such Services or that Deliverable to Customer or makes such Deliverable available for download electronically.
(iii) For Services that require final acceptance of the Deliverable, the final Deliverable and all of the Services in the SOW shall be deemed to have been Delivered and all obligations of ABBYY conclusively met and satisfied on the earlier of the date on which Customer accepts or is deemed to have accepted a Deliverable in accordance with Section 4(a) (Acceptance by Customer) hereof or the date on which Customer first uses or permits a third party to use any Deliverable in a production or other commercial use environment.
(iv) In the case of Services performed on a block of time basis, the Services are deemed Delivered when and as the Services are rendered to Customer. In such case, the Services will be billed as prescribed in the applicable Quote or SOW.
3. PAYMENT TERMS
a. Service Fees; Travel and Incidental Expenses.
(i) Service Fees. Customer agrees to pay the Service Fees (including any travel, incidental or other out of pocket expenses due as provided in Section 3(a)(ii) below) in such amounts and at such times as are stated in the applicable Quote, SOW, and in accordance with the terms and conditions of hereof. To the extent that a deposit or prepayment amount must be paid before work on a particular milestone, phase or task under a Quote or SOW or prior to any Services at all (as specified in the applicable Quote or SOW) commence, ABBYY’s obligations hereunder are conditional upon its receipt of this deposit.
(ii) Travel, Incidental and Other Out of Pocket Expenses. In the event travel is requested or approved by Customer, Customer shall reimburse ABBYY for any and all reasonable and customary travel expenses (including meals or daily allowance, lodging and other actual out-of-pocket travel expenses) incurred by ABBYY and necessary to facilitate the completion of the Services. In the event that any special or custom materials must be purchased by ABBYY in order to perform the Services and such materials are identified in a particular Statement of Work, Customer agrees to provide ABBYY a written authorization for any such expenses under these Terms prior to requiring the Services that necessitate such expenses.
(i) All payments are non-cancellable once the associated Services have commenced and are non-refundable as and when such payments are due, except as otherwise provided for herein. Any payments not paid when due will bear compounding interest at the rate equal to one and one-half percent (1.5%) per month from the date such payments were due, or at the maximum rate allowed by law, whichever is lower , plus all expenses of collection. Customer must provide payment such that it is received by ABBYY by the due date of the respective invoice.
(ii) Service Fees (including any costs and expenses due in connection with the Services as provided in the applicable Quote or Statement of Work and approved in accordance with Section 3(a)(ii) above) charged by ABBYY do not include sales, use, excise, value-added or similar taxes, and do not include any custom duties, penalties, and charges for non-compliance with tax and other regulations and other similar payments which may be levied or imposed on ABBYY by the authorities of the Customer's country pursuant to these Terms. Customer is solely responsible for all such taxes, duties or fees, and the same shall be either included in ABBYY’s invoices or paid directly by Customer.
(iii) Customer shall make the payments that it is required to make in accordance with the terms of the invoice by means of electronic transfer.
(iv) Customer is solely responsible for all bank or payment related charges, and whenever possible, shall pay in advance, or include in its payment, the amounts for such charges.
(v) Upon early termination or expiration of particular Quote or SOW Customer is obliged to pay for the Services performed by the time of termination; Customer shall also cover ABBYY’s expenses incurred in connection with the relevant Quote or SOW in a part of the Services not completely delivered. All payments owing or accrued as of the effective date of termination or after that date shall be paid by Customer without undue delay.
4. ACCEPTANCE, REJECTION, AND CORRECTION
This Section 4 (Acceptance, Rejection, And Correction) applies only to SOWs for which acceptance criteria for a Deliverable is defined in the SOW and final acceptance of the Deliverable is required. All other Services such as consulting and training are not subject to acceptance.
a. Acceptance by Customer
When ABBYY believes that it has completed any Deliverable for which acceptance criteria is set forth in the Statement of Work, ABBYY will provide that Deliverable to Customer in accordance with the mutually agreed schedule specified in the applicable Statement of Work, as such schedule is adjusted or modified in accordance with Section 2(b) (Timing) above.
Customer will accept or reject each Deliverable within ten (10) business days after that Deliverable was provided to Customer or as otherwise specified in the applicable SOW. All Deliverables that conform to the agreed upon requirements or specifications for such Deliverable in all material respects shall be accepted. Failure to give notice of acceptance or rejection within that period, or before the first distribution by Customer to any third party of the Deliverable or any product including the Deliverable or use of any Deliverable in production use by Customer or any third party (regardless of notice of rejection), will constitute acceptance for all purposes hereunder. Customer may reject any Deliverable that fails in some material respect to meet the requirements set forth in the applicable Statement of Work. A rejection notice will be effective only if it provides in writing a reasonably detailed description of any such failures in a manner sufficient to allow ABBYY to reproduce those failures. If Customer accepts or is deemed to have accepted a Deliverable, then ABBYY will be conclusively determined to have met ABBYY’s obligations with respect thereto.
ABBYY will use commercially reasonable and diligent efforts to correct any reproducible error in the Services or Deliverables reported as provided above. Under this Section 4, ABBYY’s sole and exclusive obligation, and Customer’s sole and exclusive remedy, for the failure of a Deliverable to be accepted as provided above shall be for ABBYY either (i) to re-perform the Services as described in the previous sentence, (ii) to provide substitute Deliverables which meet the specifications set forth in the applicable SOW, or (iii) to terminate the relevant SOW without further obligation for Deliverables, subject to the Parties’ reservation of all rights with respect to the issues of payment for Deliverables which are not completed. This obligation of ABBYY to correct errors in the Services or Deliverables will not apply if (1) Customer fails to implement all updates and upgrades to the Software for which the Deliverables or Services were provided or to any Deliverable made available to Customer earlier in the project defined in the applicable SOW; or (2) Customer or any third party not controlled and directed by ABBYY modifies the Deliverable, and/or combines the Deliverable with any other product; if in either case such failure of the particular Deliverable to meet the specifications of the SOW would not have occurred in the absence of (a) such failure to implement, (b) such modification, or (c) such combination.
b. The Process For Fixing Rejected Deliverables
When ABBYY believes that it has made the necessary corrections, ABBYY will again deliver the Deliverable to Customer, and the provisions of Section 4(a) shall be reapplied until the Deliverable is accepted or is deemed accepted.
5. REPRESENTATIONS AND WARRANTIES
a. Mutual Warranty of Power and Authority.
Each party represents and warrants that, as of the effective date of each Quote or SOW, such party has the right, power, and authority to enter into and perform the respective Quote or SOW, and is unaware of any breach of, or conflict, between such Quote or SOW with any of its other agreements or obligations. The foregoing representation and warranty shall not be deemed to be a warranty of title or non-infringement for any purpose.
b. Services Warranty and Remedy.
(i) If Customer has entered into these Terms with any ABBYY legal entity other than ABBYY Europe GmbH, the following rules shall apply instead of section 5(b)(ii):
ABBYY warrants that, for a period of thirty (30) days from the Delivery of any Services hereunder, such Services were performed in a professional and workman-like manner. Customer’s sole remedy and ABBYY’s sole liability for a material, uncured breach of the foregoing warranty is that ABBYY will re-perform the non-conforming Services in a manner that conforms to this warranty. Notwithstanding of the above, ABBYY shall have no warranty obligations and no remedy shall be provided by ABBYY, if any Service or its Deliverables were changed, altered or modified after the acceptance of such Service without ABBYY's prior written consent.
(ii) If Customer has entered into these Terms with ABBYY Europe GmbH, the following rules shall apply instead of section 5(b)(i):
AS FAR AS A SOW REQUIRES ABBYY TO DELIVER A SPECIFIC WORK AS THE OUTCOME OF ITS SERVICES ABBYY WITHIN 90 DAYS FOLLOWING ACCEPTANCE OF A DELIVERABLE WILL USE COMMERCIALLY REASONABLE AND DILLEGENT EFFORTS TO CORRECT ANY REPRODUCIBLE ERROR IN THE DELIVERABLES REPORTED BY THE CUSTOMER: UNDER THIS SECTION 5, ABBYY’S SOLE AND EXCLUSIVE OBLIGATINS, AN CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, FOR THE FAILURE OF A DELIVERABLE SHALL BE FOR ABBYY EITHER (i) TO ELIMINATE THE FAILURE, (ii) TO PROVIDE SUBSTITUTE DELIVERABLES WHICH MEET THE SPECIFICATIONS SET FORTH IN THE APPLICABLE SOW, OR (iii) TO TERMINATE THE CONTRACT WITH REGARD TO THE SPEFIC SOW SUBJECT TO THE STATUTORY REQUIREMENTS OF SUCH TERMINATION.
This obligation of ABBYY’s to correct errors in the SERVICES Deliverables will not apply if (1) Customer fails to implement all updates and upgrades to the Software for which the Deliverables or Services were provided or to any Deliverable made available to Customer earlier in the project defined in the applicable SOW; or (2) Customer or any third party not controlled and directed by ABBYY modifies the Deliverable, and/or combines the Deliverable with any other product; if in either case such failure of the particular Deliverable to meet the specifications of the SOW would not have occurred in the absence of (a) such failure to implement, (b) such modification, or (c) such combination.
(i) If Customer has entered into these Terms with any ABBYY legal entity other than ABBYY Europe GmbH, the following rules shall apply instead of section 5(c)(ii):
THE PARTIES ACKNOWLEDGE THAT THESE TERMS ARE FOR SERVICES AND NOT FOR THE SUPPLY OF GOODS. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN SECTIONS 5(A) AND 5(B) HEREOF, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND THE DELIVERABLES ARE PROVIDED ON AN “AS-IS,” “ALL FAULTS” BASIS WITHOUT ANY WARRANTY, EXPRESS, IMPLIED, OR STATUTORY, AND ABBYY SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OR CONDITION OF QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, AND GIVES NO WARRANTIES REGARDING ERROR-FREE OR UNINTERRUPTED USE WITH RESPECT TO THE SERVICES OR THE DELIVERABLES PROVIDED HEREUNDER. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ABBYY, ITS DISTRIBUTORS, AGENTS, OFFICERS, DIRECTORS OR EMPLOYEES SHALL IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. THIS WARRANTY DISCLAIMER CONSTITUTES AN ESSENTIAL PART OF THE AGREEMENT BETWEEN THE PARTIES AND ABBYY WOULD NOT BE ABLE TO PROVIDE THE SERVICES WITHOUT SUCH LIMITATIONS. IN THE EVENT THAT ANY OF THE FOREGOING WARRANTY DISCLAIMERS IS FOUND TO VIOLATE APPLICABLE LAW, CUSTOMER ACKNOWLEDGES AND AGREES THAT ABBYY’S LIABILITY FOR BREACH OF ANY SUCH WARRANTY SHALL NOT EXCEED THE AMOUNTS PAID FOR THE SERVICES OR DELIVERABLES WITH RESPECT TO WHICH THE WARRANTY CLAIM IS MADE.
(ii) If Customer has entered into these Terms with ABBYY Europe GmbH, the following rules shall apply instead of section 5(c)(i):
THE PARTIES ACKNOWLEDGE THAT UNLESS A SOW REQUIRES ABBYY TO DELIVER A SPECIFIC WORK AS THE OUTCOME OF ITS SERVICES THESE TERMS ARE AN AGREEMENT FOR SERVICES (“DIENSTLEISTUNGEN”) AND NOT FOR THE SUPPLY OF GOODS. THUS; FOR THIS KIND OF SERVICES, THE WARRANTY OUTLINED IN SECTION 5(B) ABOVE DOES NOT APPLY.
d. Customer Data.
(i) To perform obligations under these Terms, ABBYY may need to process and store Customer Data. Hereby Customer warrants and represents that as far as it is aware, the processing of the Customer Data under this agreement will not infringe the Intellectual Property Rights of any third party or Data Protection Laws. The warranties provided in this Section 5(d) are deemed to be made and repeated by the Customer by reference to the facts and circumstances then existing on each day whilst this guarantee remains in full force and effect.
If the provision of Services requires the use or implementation of Open Source Software, then the parties shall expressly mention the requirement of the specific piece(s) of Open Source Software in the applicable SOW and such Open Source Software shall be considered Customer Data for all purposes hereunder. “Open Source Software” shall mean any software, library, utility, tool or other computer or program code (“Code”) that is licensed or distributed as “free software”. “freeware" or “open source software" or is otherwise subject to any terms or conditions that require the Code and/or derivative works thereof: (i) to be made available or distributed in source code form; (ii) to be licensed for the purpose of making derivative works; (iii) to be licensed under terms that allow reverse engineering, reverse assembly or disassembly of any kind; or (iv) to be redistributable at no charge.
(ii) If Customer has entered into these Terms with ABBYY Europe GmbH or ABBYY UK Ltd., the following shall apply:
In case if it would be necessary for provision of Services for the Customer to provide ABBYY with Customer Materials containing any Personal Data, the Data Processing Addendum (“DPA”) available at https://abbyy.com/legal/ps-dpa/ shall govern processing of any such Personal Data by ABBYY.
6. LIMITATION OF LIABILITY
a. If Customer has entered into these Terms with any ABBYY legal entity other than ABBYY Europe GmbH, the following rules shall apply instead of section 6(b):
TO THE GREATEST EXTENT PERMITTED UNDER APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THESE TERMS WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISEFOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, FOR LOST PROFITS OR REVENUE, WASTED EXPENDITURE, LOSS OF DATA, LOSS OF ANTICIPATED SAVINGS OR GOODWILL EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED, HOWEVER, THAT THE FOREGOING SHALL NOT BE INTERPRETED TO RELIEVE CUSTOMER OF ITS PAYMENT OBLIGATIONS HEREUNDER OR PREVENT ABBYY FROM COLLECTING ALL SERVICE FEES DUE HEREUNDER THAT WERE NOT PAID BY CUSTOMER IN ACCORDANCE WITH THESE TERMS. in no event shall ABBYY’s total liability for any single claim hereunder exceed the total SERVICE fees paid by customer under THE RELEVANT SOW OR QUOTE for the services in the twelve (12) month period immediately preceding the date upon which the claim first arose; nor shall abbyy’s total and cumulative liability to customer for any and all CLAIMS ARISING FROM OR RELATED TO THESE TERMS, whether in contract, tort, or otherwise, exceed total SERVICE fees paid by customer), in either case EVEN IF ABBYY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY DESPITE THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
b. if Customer has entered into these Terms with ABBYY Europe GmbH, the following rules shall apply instead of section 6(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 RELEVANT QUOTE OR SOW in respect of damages caused by a slightly negligent breach of a material contractual obligation required for the appropriate execution of the QUOTE OR SOW 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 11, especially not in cases of consequential damages, loss of revenue or profits, punitive damages or any other special damages.
The above limitation of liability also applies in respect of the personal liability of the employees, representatives and agents of ABBYY.
The limitation of liability set forth above shall not apply to 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 an intentional or grossly negligent breach of duty or liability for culpably caused injuries to life, body or health.
c. THE PROVISIONS OF THIS SECTION 6 ALLOCATE RISKS BETWEEN CUSTOMER AND ABBYY. ABBYY’S PRICING REFLECTS THIS ALLOCATION OF RISKS AND LIMITATION OF LIABILITY. CUSTOMER ACKNOWLEDGES AND AGREES THAT THIS LIMIT ON LIABILITY CONSTITUTES AN ESSENTIAL PART OF THE AGREEMENT BETWEEN THE PARTIES AND THAT ABBYY WOULD NOT BE ABLE TO PROVIDE THE SERVICES WITHOUT SUCH LIMITS.
NOTHING HEREIN SHALL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR (I) DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE; (II) FRAUD OR FRAUDULENT MISREPRESENTATION; OR (III) ANY OTHER LIABILITY WHICH CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.
7. DEFENSE AND INDEMNIFICATION BY ABBYY
a. Subject to the terms and conditions hereof, including without limitation the limitations contained in this Section 7, ABBYY agrees, at its expense, to defend Customer against a credible third party claim that specific portions of the Services or Deliverables infringe any applicable Intellectual Property Rights, or misappropriates any trade secrets (“IP Claim”), and to indemnify Customer from and against any settlement amount agreed to in writing by ABBYY, or finally awarded judgment where ABBYY is judicially determined to have infringed such third party Intellectual Property Rights or misappropriated such third party trade secrets, incurred by Customer as a direct result thereof. In no event shall ABBYY’s obligation with respect to IP Claims in this Section 7, including, but not limited to, any obligation to indemnify, defend, or hold harmless, exceed the limitations of liability set forth in Section 6 (Limitation of Liability) hereof.
b. ABBYY shall have no indemnity or defense obligation if Customer does not:
- notify ABBYY in writing of any such IP Claim within seven (7) days or earlier, if a quicker response is appropriate under the circumstances, after Customer’s receipt of notice or first becoming aware of such IP Claim;
- tender to ABBYY sole control of the defense and any settlement negotiations related to such IP Claim; and
- cooperate fully with ABBYY at ABBYY’s request in the defense or any related settlement negotiations. ABBYY has the right to select and retain counsel of its choice for the defense, and to require Customer to enter into a joint defense agreement if ABBYY deems it necessary in order to preserve privileges or for the orderly dispatching of the IP Claim. Subject to entering into such a joint defense agreement, Customer may select and retain its own counsel and/or participate in any such IP Claim, but does so at its own expense.
c. ABBYY shall have no defense or indemnity obligation, including without limitation, for any Services, Deliverables or other software or any portion or component thereof (no matter who creates or provides it):
- that is not provided by ABBYY;
- that is modified by a party other than ABBYY and not at its direction, if the alleged infringement would not have occurred in the absence of such modification;
- that is combined with other products, processes, or materials where the alleged infringement would not have occurred in the absence of such combination;
- to the extent Customer continues allegedly infringing activity after (a) being notified thereof, and (b) being provided at no additional cost to Customer modifications that would have avoided the alleged infringement without significant loss of performance, compatibility, or functionality;
- where Customer’s use or distribution of the Service, Deliverable or other software, rather than the Service, Deliverable or other software itself, is not consistent with the terms hereof or any applicable license or is the primary cause of an alleged infringement; and/or
- that is the result of, in whole or in part, due to Customer’s specifications or other direction, information received from Customer, or otherwise caused by Customer.
d. In the event a third party makes an IP Claim against Customer, ABBYY may, at its option, (i) modify the allegedly infringing Services or Deliverables generated as a result of the Services in such a way that such Service or Deliverable shall not infringe upon or misappropriate the rights of the third party or (ii) obtain for Customer a license or other right to use such Services or Deliverables. If the foregoing options are not available on commercially reasonable terms and conditions, ABBYY may require the cessation of the allegedly infringing Services or return of the allegedly infringing Deliverables, and refund to Customer amounts paid for such Services or Deliverables, minus a reasonable allowance for the period Customer used the Services or Deliverables.
e. ABBYY’s obligations under this Section 7 describe Customer’s sole and exclusive remedy and ABBYY’s sole and exclusive liability for a third party claims that any of the Services or Deliverables infringe or misappropriate a third party’s Intellectual Property Rights.
8. DEFENSE AND INDEMNIFICATION BY CUSTOMER
a. Subject to the limitations in this Section 8 and as additionally stated elsewhere herein, Customer agrees to, at its expense, to defend ABBYY against a third party claim that any of the Customer Data or the Customer’s use of the Services or the Deliverables in contravention of thse SOW any SOW or a Quote infringes any Intellectual Property Rights or is provided in breach of any applicable legislation, and to indemnify ABBYY from and against any settlement amount agreed to by Customer, or finally awarded judgment where Customer is judicially determined to have infringed or misappropriated such third party rights, incurred by ABBYY as a result thereof.
b. Customer shall have no indemnity or defense obligation if ABBYY does not:
- notify Customer in writing of any such claim within seven (7) days or earlier, if a quicker response is appropriate under the circumstances, after ABBYY’s receipt of such claim;
- allow Customer to assume sole control of the defense and any settlement negotiations related to such claim; and
- cooperate with Customer in the defense or any related settlement negotiations. Customer has the right to select and retain counsel of its choice for the defense; ABBYY may select and retain its own counsel and/or participate in any such claim, but does so at its own expense.
c. Customer shall have no defense or indemnity obligation, including without limitation, for any Customer Data:
- that are not provided by Customer;
- that are modified by a party other than Customer and not at its direction, if the alleged infringement would not have occurred in the absence of such modification;
- that are combined with other products, processes or materials where the alleged infringement would not have occurred in the absence of such combination;
- to the extent ABBYY continues allegedly infringing activity after (1) being notified thereof, and (2) being provided at no additional cost to ABBYY modifications that would have avoided the alleged infringement without significant loss of performance, compatibility, or functionality;
- where ABBYY’s use or distribution of the Customer Data is not consistent with the terms hereof or any applicable license or is the primary cause of an alleged infringement; and/or
- that is the result of, in whole or in part, due to ABBYY’s specifications or other direction, information received from ABBYY, or otherwise caused by ABBYY.
d. In the event a third party makes a claim against ABBYY alleging that Customer’s Data infringe upon such third party’s Intellectual Property Rights, Customer may, at its option and in addition to its obligation to indemnify in accordance with clause 8.a above, (i) modify Customer’s Data in such a way that it shall not infringe upon or misappropriate the rights of the third party or (ii) obtain for ABBYY a license or other right to use such Customer Data.
e. Customer’s obligations under this Section 8 describe ABBYY’s sole and exclusive remedy and Customer’s sole and exclusive liability for a third party claim that Customer’s Data infringe or misappropriate a third party’s Intellectual Property Rights.
ABBYY shall secure, pay the premium for, and keep in force until the termination of any Quote or SOW, insurance with financially sound and reputable insurance companies or associations in such amounts and covering such risks as are usually carried by companies engaged in the same or a similar business and similarly situated, which insurance may provide for reasonable deductibility from coverage thereof.
10. INTELLECTUAL PROPERTY
a. Pre-Existing Intellectual Property
Each party retains all Intellectual Property Rights respectively owned by them prior to entering into the relevant Quote or SOW (even if used in connection with performing the relevant Quote or SOW). This includes without limitation any and all layouts created, rules, scripts, workflow components (including without limitation customized or configured workflows and workflow components), tools, training materials, automation programs, and other work developed by ABBYY or its third party suppliers. Neither these Terms, nor any Quote or SOW shall grant Customer any rights in any of ABBYY’s Intellectual Property other than the license to use the Deliverables specified in Section 10(b) (Intellectual Property from Services) below. Customer hereby grants to ABBYY a limited, world-wide, sub-licensable but otherwise non-transferable, royalty-free, fully paid-up license under Customer’s Intellectual Property Rights to use, reproduce and modify any Customer Intellectual Property (including any Customer information, systems or Customer Data) provided by Customer to ABBYY or otherwise necessary solely in order for ABBYY to perform the Services during the Services performance period. Other than the foregoing limited license, Customer retains all Intellectual Property Rights owned by it prior to entering into the relevant Quote or SOW (even if used in connection with performing this the relevant Quote or SOW), and these Terms shall not grant ABBYY any rights in any of Customer’s Intellectual Property, except as provided under Section 12 (Residual Information).
b. Intellectual Property from Services
Customer shall have no right to any Intellectual Property created as a result of the Services until final Delivery of the Services and payment to ABBYY of all amounts due to ABBYY hereunder. Customer shall have the rights to the Intellectual Property in Deliverable that is specifically created for Customer that are not a part of and that do not comprise a Derivative Work of the Product or other ABBYY Intellectual Property, subject to Section 12 (Residual Information). By way of clarification and not as an exhaustive list, the forgoing rights to the Intellectual Property in Deliverable created specifically for Customer will not include rights to Product projects, layouts, rules, scripts, or workflow components, or to any API customizations, extensions or configurations, that are developed or modified in the course of performing the Services (all of which constitute ABBYY Intellectual Property and ABBYY’s Confidential Information) (“Reserved Output”); provided, however, that, subject to the terms and conditions hereof, Customer is hereby granted a limited license to use internally all such Reserved Output that is contained in the final Deliverables under the same license terms and restrictions as stipulated in an Product Agreement with the Customer for the Product that is the subject of the Services. Customer shall have the rights to Intellectual Property as may be developed independently by Customer outside of the scope of any Services hereunder, excluding any such Intellectual Property to the extent that it contains or is a Derivative Work of ABBYY Intellectual Property.
All rights not expressly granted by the original party hereunder who held such rights at the outset of the applicable Quote or Statement of Work shall be retained by such party.
a. Except as allowed herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information of the Disclosing Party except as required for the performance of its obligations and exercise of its rights hereunder, and shall similarly bind those persons to whom it gives access to such Confidential Information in writing. The Receiving Party will not use any of the Disclosing Party's Confidential Information for any purpose not expressly permitted hereby, and will disclose such Confidential Information only to the Receiving Party's employees, agents, contractors, and consultants (and when ABBYY is the Receiving Party also to its Affiliates) who have a need to know such Confidential Information for purposes of the Receiving Party exercising its rights or performing its obligations hereunder. The Receiving Party will protect and will require those persons to whom it gives access to such Confidential Information to protect, the Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care. The Receiving Party will be liable for any breach of confidentiality by any such those persons to whom it gives access to such Confidential Information. The Receiving Party shall not be obligated under this Section 11 (Confidentiality) with respect to of Disclosing Party’s information that the Receiving Party can document or otherwise demonstrate on credible evidence: (i) is or has become readily publicly available without restriction through no fault of the Receiving Party or those persons to whom it gives access to such Confidential Information; (ii) was received without restriction from a third party lawfully in possession of such information and lawfully empowered to disclose such information without restriction; (iii) was rightfully in the possession of the Receiving Party prior to its disclosure by the other party; or (iv) was independently developed by employees or consultants of the Receiving Party without use of or access to Confidential Information.
b. The Receiving Party will not be deemed to have breached its obligations of non-disclosure hereunder with respect to any disclosure of the Disclosing Party’s Confidential Information required by law or made by the order of a court or similar judicial or administrative body, provided that the Receiving Party where permitted by the applicable law first notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party in any lawful action to contest, exclude from or limit the disclosure of any such Confidential Information and, where disclosure is unavoidable, to seek a protective order or otherwise limit and protect such disclosure and take other steps reasonably necessary to preserve the confidentiality of such information to the greatest extent possible. Each party agrees that by disclosing information hereunder, the Disclosing Party does not thereby grant to the Receiving Party any express or implied right or license under the Disclosing Party’s patents, copyrights, trademarks, trade names, service marks, proprietary designations, or other Intellectual Property, except as otherwise expressly provided herein.
c. The obligations of confidentiality set forth in this Section 11 (Confidentiality) shall survive any termination or expiration of the applicable Quote or Statement of Work under which such disclosure was made for a period ending five years after the first disclosure of such Confidential Information to the Receiving Party, except with respect to any disclosure of software code or technical documentation for software code disclosed by ABBYY, for which disclosures the obligations of confidentiality shall survive in perpetuity or the longest period of time allowable by applicable law, whichever is shorter.
12. 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 performing services for Customer, itself or any of its customers in the ordinary course of its business (e.g. management and development of software products). Therefore, (i) when ABBYY receives the source materials containing the target information to be extracted or processed using the Product, which materials comprise Customer’s Confidential Information, ABBYY may use such materials to improve ABBYY products and for statistical and analytical purposes; and (ii) Customer agrees 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 performing the Services for Customer 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 Customer’s Confidential Information to refresh its recollection (“Residual Information”). Nothing herein 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 these Terms, any Quote or SOW.
13. TERM AND TERMINATION
a. The term of each Quote or Statement of Work shall be specified in such Quote or SOW..
b. If either party materially breaches these Terms or any Quote or SOW hereunder, the other party may terminate all Quotes and SOWs hereunder or just the affected Quote or SOW upon thirty (30) days’ notice (or upon ten (10) days in the case of nonpayment or an unresolved dispute of an invoice). ABBYY’s right to suspend or cease entirely performance of the Services in a particular Quote or SOW for non-payment by Customer shall not be considered a breach of these Terms or such Quote or SOW. If Customer terminates all Quotes and SOWs hereunder or any particular Quote or SOW due to ABBYY’s uncured material breach hereof or thereof, ABBYY will immediately deliver to Customer any and all completed Deliverables for which Customer has already paid with respect to the Services. All amounts prepaid by Customer that are non-cancelable and non-refundable on or prior to the effective date of the termination shall be retained by ABBYY.
c. Effect of Termination. Immediately upon the termination of a Quote or a SOW for Customer’s uncured material breach of the licenses to the Deliverables granted hereunder or any uncured material breach of Customer’s payment or confidentiality obligations, the licenses granted hereunder for the relevant Deliverables shall terminate, and Customer shall be required to return (or with ABBYY’s consent destroy and certify as to such destruction in writing) any and all copies of such relevant Deliverables or other Confidential Information of ABBYY’s provided in connection with the Services. 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 or a SOW. Notwithstanding the foregoing, after any termination of any Quote or SOW, ABBYY shall solely be required to provide the protections, defenses and indemnities required under Section 7 (Defense and Indemnification by ABBYY) with respect to any Services already performed for Customer (and paid for), and Deliverables already delivered to (and paid for) Customer for claims that have been brought by Customer or arise under such Section 7 within one (1) year of any termination of the Quote or the SOW. Sections 1 (Definitions), 3 (Payment Terms), 5(c) (Disclaimers), 6 (Limitation of Liability), Section 7 as it pertains to any continuing obligations of indemnify as provided in the foregoing sentence, 8 (Defense and Indemnification by Customer) solely with respect to claims arising prior to the effective date of termination, 11 (Confidentiality), 12 (Residual Information), 13 (c) (Effect of Termination), 14 (Relationship of the Parties), 15 (Choice of Law & Venue), and 16 (Miscellaneous) shall survive any termination of any Quote or SOW hereunder.
14. RELATIONSHIP OF THE PARTIES
Despite any provision hereof, for all purposes of these Terms each party shall be and act as an independent contractor and not as partner, joint venturer, or agent of the other and shall not bind nor attempt to bind the other to any contract.
15. CHOICE OF LAW & VENUE
ABBYY USA Software House, Inc. If Customer entered into these Terms 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 Customer 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 UK Ltd. If Customer entered into these Terms with ABBYY UK Ltd., these Terms and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Terms or its subject matter or formation (including non-contractual disputes or claims).
ABBYY Europe GmbH. If Customer entered into these Terms with ABBYY Europe GmbH., these Terms, and any and all actions arising from or in any manner affecting the interpretation of these Terms, shall be governed by and construed solely in accordance with the laws of Germany, without giving effect to its conflicts of laws or choice of law provisions. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms. Any action arising out of or relating to these Terms shall be brought exclusively in the appropriate courts in Munich, Germany, and the parties consent to the exclusive personal jurisdiction of such courts for such purposes, if the Customer is a merchant, a legal person under public law, or a special asset under public law.
ABBYY Pty. Ltd. If Customer entered into these Terms with ABBYY Pty. Ltd., these Terms shall be governed by and construed under the laws of New South Wales, Australia, excluding its conflicts of law principles. Any disputes arising under these Terms shall be brought in the federal or state court in New South Wales, Australia. 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 Japan Co. Ltd. If Customer entered into these Terms with ABBYY Japan Co. Ltd., these Terms shall be governed by and construed under the laws of Japan, excluding its conflicts of law principles. Any suit hereunder shall be brought in the Tokyo District Court, and Customer submits to the jurisdiction thereof. 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 Singapore PTE LTD. If Customer entered into these Terms with ABBYY Singapore PTE LTD., these Terms and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of Singapore. Each party irrevocably agrees that the courts of Singapore shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Terms or its subject matter or formation (including non-contractual disputes or claims).
ABBYY Emerging Markets Limited. If Customer entered into these Terms with ABBYY Emerging Markets Limited., these Terms and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of Hong Kong. Each party irrevocably agrees that the courts of Hong Kong shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Terms or its subject matter or formation (including non-contractual disputes or claims).
ABBYY Solutions Ltd. If Customer entered into these Terms with ABBYY Solutions Ltd., this Agreement 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 this Agreement. Any dispute, controversy or claim arising out of or in connection with this Agreement, 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.
a. Customer shall not assign, transfer, or sublicense any obligation or benefit under these Terms (whether by operation of law, merger, acquisition, sale of a business or stock, change in control or beneficial ownership, or otherwise) without the written consent of ABBYY. In the event of a merger or sale of all or substantially all of the business or assets of Customer in which the Product that is the subject matter of Services has been assigned or transferred to the acquiring entity, ABBYY’s consent shall not be unreasonably withheld or delayed.
b. ABBYY will determine, in its sole and reasonable discretion, the appropriate ABBYY resources to be used in performing the Services, on an as-available basis. ABBYY sometimes utilize the services of a limited number of third parties, whether companies or individual sub-contractors (“Contractors”) which have been determined by it to meet its standards. ABBYY may elect to use a Contractor, without any obligation to do so. In order to most effectively meet Customer’s needs, ABBYY may assign or subcontract all or part of ABBYY’s performance obligations and rights towards the performance of Services to a Contractor.
c. In provision of Services hereunder ABBYY shall comply with ABBYY Information Security Policy for Professional Services available at https://www.abbyy.com/legal/infosec-policy-ps/. ABBYY may unilaterally change ABBYY Information Security Policy for Professional Services without notice and effective as of any time, including immediately, where such changes do not result in a decrease of ABBYY obligations thereunder.
d. All notices hereunder shall be in writing, and shall be deemed given when personally delivered, or delivered by registered mail or courier with delivery confirmation to the address of the party as such party last provided to the other by written notice.
e. The failure of either party to assert or enforce its rights under these Terms at any time for any period shall not be construed as a waiver of such rights, and the waiver of rights in one circumstance shall not be construed as a waiver for all purposes.
f. No liability or loss of rights hereunder shall result to either party from delay or failure in performance caused by force majeure, that is, circumstances beyond the reasonable control of the party affected thereby, including, without limitation, acts of God, fire, flood, war, government action, compliance with laws or regulations, strikes, lockouts, or other serious labor disputes, or shortage of, or inability to obtain, material or equipment. 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.
g. Except as otherwise expressly stated herein, the rights and remedies of a party set forth herein with respect to failure of the other to comply with the terms hereof (including, without limitation, rights of full termination) are not exclusive, the exercise thereof shall not constitute an election of remedies and the aggrieved party shall in all events be entitled to seek whatever additional remedies may be available in law or in equity.
h. Headings herein are for convenience of reference only and shall in no way affect interpretation hereof.
i. In the event that any provision of these Terms, any Quote or SOW is determined to be illegal or unenforceable, then that provision will be limited or eliminated to the minimum extent necessary so that these Terms and Quote or SOW shall otherwise remain in full force and effect and enforceable.
j. 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 or SOW shall govern such Quote or SOW. No changes or modifications or waivers are to be made to any Quote or SOW unless evidenced in writing and signed by an authorized representative of both parties. 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) and these Terms, the parties hereby agree that the Terms shall control. In the event of a conflict between These Terms and a Quote or SOW, these Terms shall prevail, except for where the Quote or SOW contains a reference to a particular section of these Terms together with clear expression of the Parties’ intention to deviate from it, in which case the Quote or SOW shall prevail with respect to that particular section at issue in the Quote or SOW.
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 the Parties and ABBYY’s Affiliates, any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement including without limitation under any applicable laws.
THIS VERSION OF THE TERMS IS EFFECTIVE AS OF February 28, 2022.