Terms of Service
Where AbacusNext software products are purchased by Client via a fully executed Order Form or through a website managed by Abacus or its affiliates which incorporates these AbacusNext Software Terms (“Terms”), the following terms and conditions shall govern Client’s AbacusNext Software Subscription. The products and services described in these terms shall at all times be provided by Abacus and its Affiliates.
1. AbacusNext Software Subscription – All AbacusNext Software items purchased by Client in a fully executed Service Order Form or Service Order Addendum (collectively an “Order Form”) shall be part of Client’s AbacusNext Software Subscription and subject to these Terms. Client’s license to use the products and receive Support are contingent on Client making timely Payments as set forth below. Only where Client and Abacus have negotiated and executed a separate set of terms (e.g. a Master Services Agreement) attached to a fully executed Order Form, shall these Terms not apply. To the extent Abacus has offered a Modification in a signed Order Form governed by a prior set of terms, that Modification will prevail over the logically equivalent section in the terms below.
2. Grant of License – Abacus grants Client a non-exclusive, limited, and non-transferable license to use the products and services that comprise Client’s AbacusNext Subscription subject to Client making its Payments. Unless otherwise specified on the applicable Order Form, this license is limited to one runtime and/or repository instance. A separate subscription is required for each additional runtime and/or repository instance. Separate license fees and validation codes are required for each business entity to use any of the products that comprise Client’s AbacusNext Software Subscription. Client agrees to pay a license fee for each User (who must be employed by Client unless a waiver is granted by Abacus expressly in writing) who uses any of the products that comprise Client’s AbacusNext Subscription, and only those Users who have proper user credentials may use those products or any of the other products that comprise Client’s AbacusNext Subscription. Client’s use of AbacusNext Software is subject to the Acceptable & Fair Use Policy set forth below. Abacus is under no obligation to grant Client additional licenses. By accepting these Terms, Client acknowledges that any license Client may have had to prior versions of products or services licensed by Abacus or one of its predecessors in interest (including legacy or perpetual licenses) terminates upon Client’s signature on the applicable Order. Client agrees that it will not rent, lend, or transfer any products or services the comprise Client’s AbacusNext Software Subscription or any of its rights under these Terms without the express written permission of Abacus.
3. Hosting of Licenses– Unless Client purchases license or SKU that specifically permits Client to remotely host or make AbacusNext Software server enabled (“Hosted License”), Client may not host AbacusNext Software within any type of remote access solution, including but not limited to Remote Desktop Services session, a Terminal Services session, in a cloud (private or multitenant) environment, via Citrix, TeamViewer, or a similar solution, or from multiple physical locations connected to a single software deployment (collectively “Hosted”). Where Abacus determines that during the Term of Client’s AbacusNext Software Subscription Client is using or has used AbacusNext Software products in a Hosted fashion, Client acknowledges and agrees that a fee increase will apply at then-current list prices for each User (“Hosting License Fee Increase”) on Client’s AbacusNext Software Subscription, effective immediately, backdated to the commencement of the Term of Client’s AbacusNext Software Subscription, and the total amount owed will be amortized over the remainder of the Term of Client’s AbacusNext Software Subscription. If Client has purchased AbacusNext Cloud products in addition to AbacusNext Software products, a Hosted License is not required, but Client’s license to use AbacusNext Software products is limited to host and use within Client’s Abacus Cloud products. This paragraph is not applicable to Zola Suite.
4. Payments – Client shall pay all fees and expenses as listed in the Order Form for the entire Term of Client’s AbacusNext Software Subscription (the “Payment”). Whether Client pays annually or monthly, the Payment is made in advance of the services being provided. Where Client selects to make the Payment by annual invoice, Client shall make its annual payment within thirty (30) days of Client’s receipt of the annual invoice. Where Client selects to make the Payment by monthly expenses, Client authorizes Abacus to automatically bill in advance of each month’s services via a recurring Automated Clearing House transaction. All payments made by Client to Abacus are non-refundable. Client shall pay Abacus the fees set forth in the applicable Order together with any taxes payable by Client that are required to be collected by Abacus pursuant to any applicable law. To the extent that any foreign government imposes a tax, tariff or similar charge on Abacus arising out of Client’s AbacusNext Software Subscription, Client agrees Client will be solely responsible for paying such fees. Any fees listed in an Order Form are set forth in US Dollars unless specifically indicated on the Order Form that the fees charged are in a different currency. To the extent Client wishes to be billed in a different currency than USD, at the time of signature, Abacus will take the 30-day average of the conversion from US Dollars to Client’s selected currency, and charge that rate for the duration of Client’s Initial Term. As it relates to payments made by Client, Client will be charged a fee of $35 for any returned payment, including but not limited to any check or Automated Clearing House transaction that is deemed invalid due to insufficient funds. Any fees due under these Terms that are greater than 15 days past due shall bear interest at the rate of one and one-half percent per month.
5. Software Performance – Abacus shall make all reasonable efforts to make AbacusNext Software products purchased by Client function in substantial accordance with the published documentation and applicable user support guides (“Knowledge Base”) found within the AbacusNext Customer Portal, subject to Client meeting the minimum system requirements. Due to changes in technology and the marketplace, Abacus may make modifications to the products or services that comprise Client’s AbacusNext Software Subscription, or particular components of such product or service (including but not limited to discontinuing a component) from time to time, and will use commercially reasonable efforts to notify Client of any material modifications.
6. Knowledge Base – Each AbacusNext Software product, subject to the description of service(s) purchased as part of Client’s AbacusNext Software Subscription, is provided in accordance with the applicable Knowledge Base linked below (all of which are herein incorporated by reference):
Where Client hosts AbacusNext Software products within AbacusNext Cloud Products, additional terms, conditions, and requirements shall apply, as described in the applicable AbacusNext Cloud Terms (found at https://www.abacusnext.com/cloudterms/).
7. Third-Party Software or Services – Certain AbacusNext Software products may include the use of Microsoft products or services, including but not limited to Microsoft Azure Hosting and Microsoft Azure PaaS solutions. Where the AbacusNext Microsoft Azure Policy, (found at https://support.abacusnext.com/hc/en-us/articles/360047245672) and herein incorporated by reference, describes a product’s use of Microsoft Azure, Client agrees that Client’s Data may be stored within Microsoft Azure and hosted in a data center that meets the AICPA requirements for a SOC II Type II compliant data center. The Microsoft Azure data center used to store Client’s Data shall be located in the United States, Canada, or Ireland, depending on the business address Client provides to Abacus. Where the applicable Knowledge Base describes Client’s use of any Microsoft products or services as part of Client’s AbacusNext Software Subscription, Client agrees that the applicable standard Microsoft terms and conditions for those products or services shall apply (found at https://www.microsoft.com/en-us/). Zola Suite utilizes Amazon Web Services (AWS) as it primary web infrastructure and data hosting platform.
8. Abacus Payment Exchange (APX) – Client may have the option to use Abacus Payment Exchange (“APX”) which is a payment processing service made accessible in select AbacusNext software products or services that is provided by either Vantage Card Services, Inc. (“Vantage”) via APX 1.0 or Payrix Solutions, LLC (“Payrix”) via APX 2.0, and is otherwise governed by all terms and policies set forth respectively by either Vantage or Payrix (as applicable). In order to use APX, Client must accept the applicable Vantage or Payrix governing terms, and any additional terms related to Abacus as set forth in the on-boarding process. ABACUS DOES NOT WARRANT THE PERFORMANCE OR FUNCTIONALITY OF APX. APX (1.0 and/or 2.0) may not be available to certain customers or products.
9. Technical Support – Technical support and troubleshooting for reported issues that are directly related to the AbacusNext Software product(s) purchased by Client is included as part of Client’s AbacusNext Software Subscription, as provided in this paragraph. Abacus shall not be obligated to provide technical support or to cure issues regarding third-party applications, customizations, integrations with third-party applications, internet or local network connectivity, Client’s local infrastructure or workstations, or issues caused by Client’s users, agents, or other technology providers. Included with Client’s AbacusNext Software Subscription is access to AbacusNext standard technical support, during Technical Support business hours for each product, located within the FAQ section of each product’s Knowledge Base found at https://support.abacusnext.com/hc/en-us. In order to request technical support from AbacusNext, Client must first initiate its support request using the AbacusNext Customer Portal, by creating a support ticket or using the live chat feature included on the AbacusNext Customer Portal. Depending on the nature of the reported technical issue, Abacus may initiate further troubleshooting efforts, which may include support via the live chat feature, responding via e-mail to a support ticket created by Client, or in certain cases providing direct phone support, remote screen-sharing, and/or direct access into Client’s database, files, software or environment, as well as Abacus taking screen grabs of Client’s Users’ screens, adding and/or deleting records (solely for the purpose of diagnosing and correcting the reported issue(s)). Any support response or combination thereof shall be provided in Abacus’ sole discretion. By requesting support, Client shall be deemed to have granted Abacus, its Affiliates and agents permission to utilize any and all methods of support listed in this paragraph.
10. Advanced Support Offerings – Client can purchase Advanced Support Offerings described below (Premium Support, 24/7 Support, etc.) to enhance its AbacusNext Software Subscription experience. Where purchased in any Order Form, Advanced Support Offerings shall be provided in accordance with Technical Support, as well as in accordance with additional service descriptions found in the applicable software Knowledge Base.
- Premium Support – Where offered for a particular product and otherwise purchased in a Service Order Form or Service Order Addendum, Premium Support shall include unlimited maintenance, support, and updates for AbacusNext software In addition to receiving access for up to ten (10) designated Users to use a priority level support queue, unlimited access to an online training database, and 50% discounted fees to attend all AbacusNext events and webinars, Premium Support shall also include a dedicated Technical Account Manager (“TAM”), which shall serve as Client’s primary point of contact. Where Client has made Premium Support a part of Client’s AbacusNext Software Subscription, Abacus will make its best efforts to respond to support inquiries in accordance with the following table:
|Severity Level||Initial Response Objective|
|Severity Level 1 – AbacusNext Software application is down, with no workaround immediately available. All or a substantial portion of mission critical data in the AbacusNext Software application is at a significant risk of loss or corruption.||30 Minutes Response Time, 24/7.|
|Severity Level 2 – Client can access the AbacusNext Software Application, however a critical function is not working or available thereby disrupting Client’s business operations.||2 Hours Response Time, 24/7.|
|Severity Level 3 – Client can access the AbacusNext Software application, however a non-critical function is not working or available which does not immediately impact Client’s ability to conduct business.||4 Regular Business Hours Response Time.|
- Technical Account Manager (“TAM”) – Where purchased in a Service Order Form or Service Order Addendum, or as included within Client’s purchase of Premium Support, Client’s TAM includes a dedicated resource available for technical account management or technical support escalations, with scheduled weekly or bi-weekly case scrub/project management calls. In addition, Client’s TAM will assist in scheduling application upgrades, and can provide step- by-step resolution guides or screen recordings on certain types of technical support tickets in order to elevate Client’s self-service ability and result in more successful use of platform features.
- 24/7 Support – Where purchased in a Service Order Form or Service Order Addendum 24/7 Support shall mean 24/7 access for Client’s Users to a support queue including the ability to report technical incidents via chat, email, portal, and a dedicated phone Pricing will be determined in accordance with Client’s number of Users (based on multiples of 10), and Client acknowledges and understands that Client’s MRC for 24/7 Support will increase by $100 each time Client’s number of Users increases in multiples of 10 to the next tier (i.e. 10 Users, 20 Users, 30 Users, and so on, until Client reaches 100+ Users which requires custom pricing).
11. Professional Services – Any request for Abacus to perform technical support, services, or any deliverables that are outside the scope of Technical Support shall require a Professional Services engagement, provided on a time and materials basis by Abacus and its Affiliates at the prevailing hourly rate. All such Professional Services shall be rendered pursuant to a separate Statement of Work (“SOW”), a separate and distinct agreement from Client’s AbacusNext Software Subscription and governed by the terms and conditions set forth at https://www.abacusnext.com/professionalservicesterms.
12. Confidentiality – ny information, including but not limited to data belonging to Client or any third-party, provided by Client to AbacusNext or entered by Client into an AbacusNext product, service, or website (“Client’s Data”) shall be treated as confidential information. Unless legally required, Abacus shall not disclose Client’s Data or its contents to third parties without the Client’s express written consent. Likewise, Client shall not disclose any information related to AbacusNext, or its products or services, that is either marked confidential or, given its subject matter, would reasonably be regarded as being of confidential nature, without Abacus’ express written consent. The rights and obligations set forth in this section shall not apply to: (i) information publicly known or in the public domain prior to the time of disclosure; (ii) information publicly known and made generally available after disclosure through no action or inaction of the recipient; (ii) information already in the possession of recipient, without confidentiality restrictions; (iv) information obtained by the recipient from a third party without a breach of confidentiality; and (v) information independently developed by the recipient.
13. Intellectual Property – Abacus and its Affiliates own all rights, title and interest, including all related Intellectual Property Rights, in and to all AbacusNext products and services, and any suggestions, ideas, enhancement or development requests, feedback, or recommendations provided by Client relating to the products and services. The AbacusNext name and logos, as well the product names and logos associated with all AbacusNext products and services are trademarks of AbacusNext or its Affiliates. Client retains all right, title, and interest in and to Client’s Data. Client warrants that it owns the necessary legal rights to Client’s Data, and grants to AbacusNext the necessary licenses and rights to Client’s Data as necessary for AbacusNext to: (i) provide the products, services, and corresponding support to Client; (ii) compile aggregated information that AbacusNext can use to improve its products; and (iii) share information with Client relevant to other AbacusNext products and services that may be of use to Client.
14. Term – Unless stated otherwise in the Order Form, the term of Client’s AbacusNext Subscription commences on the date when Abacus processes Client’s initial payment and shall continue for the minimum term set forth in the corresponding Order Form executed by Client (“Initial Term”).
ABSENT EITHER PARTY PROVIDING THE OTHER WITH WRITTEN NOTIFICATION (AS REQUIRED IN THE NOTICES SECTION BELOW) AT LEAST SIXTY (60) DAYS PRIOR TO THE EXPIRATION OF THE INITIAL TERM OR ANY SUBSEQUENT RENEWAL TERM, CLIENT’S ABACUSNEXT SOFTWARE SUBSCRIPTION WILL AUTOMATICALLY RENEW FOR A TWELVE (12) MONTH (“RENEWAL TERM”) SUBJECT TO A PRICE INCREASE IN AN AMOUNT UP TO THE PERCENTAGE CHANGE OF THE CONSUMER PRICE INDEX FROM THE U.S. BUREAU OF LABOR STATISTICS FOR ALL ITEMS LESS FOOD AND ENERGY (DETERMINED ON: DECEMBER 31 OF EACH YEAR AND APPLIED TO RENEWALS OCCURRING FROM FEBRUARY 1 THROUGH JULY 31; JUNE 30 OF EACH YEAR AND APPLIED TO RENEWALS OCCURING FROM AUGUST 1 THROUGH JANUARY 31) PLUS 2%.
WHERE MONTH-TO-MONTH TERMS ARE AVAILABLE AND APPLY, CLIENT’S ABACUSNEXT SOFTWARE SUBSCRIPTION WILL RENEW ON A MONTHLY BASIS. ABACUS, WITH THIRTY (30) DAYS NOTICE, MAY INCREASE PRICING ON MONTH-TO-MONTH CONTRACTS IN AN AMOUNT UP TO THE PERCENTAGE CHANGE OF THE CONSUMER PRICE INDEX FROM THE U.S. BUREAU OF LABOR STATISTICS FOR ALL ITEMS LESS FOOD AND ENERGY (AS RECORDED ON DECEMBER 31 AND JUNE 30 OF EACH YEAR) PLUS 2%. CLIENT MUST PROVIDE THIRTY (30) DAYS NOTICE TO CANCEL WITHOUT PAYING THE EARLY TERMINATION FEE, AS DEFINED IN SECTION 18 BELOW.
15. Users – Each unique named individual (“User”) must have a license to use AbacusNext Software. Concurrent use of a User license by more than one individual is expressly prohibited. A User license is part of Client’s AbacusNext Software Subscription, and the User license may only be reassigned to another individual in the event that the User has ceased working for Client or within Client’s organization. Where available or otherwise offered for a particular product (depending on the AbacusNext Software product and at Abacus’ sole discretion) Client may purchase a Flex User. A Flex User shall have the same definition as User, except that Client may cancel a Flex User License with thirty (30) days’ notice, without the applicable Early Termination Fee.
16. Non-Solicitation – uring the term of Client’s AbacusNext Software, and for 12 months thereafter, Client agrees that it will not directly or indirectly recruit, solicit or otherwise induce or attempt to induce any employee of Abacus (or its affiliates) that had direct contact with Client while that employee was acting in the course and scope of the employee’s duties with Abacus to terminate his or her employment with Abacus. Client acknowledges that if it breached this Paragraph and the relevant employee left his or her employment with Abacus, it would be difficult to determine actual damages. Based on what the Parties presently know, they agree that an amount equal to 100% of the relevant employee’s Abacus annual salary is a reasonable estimate of the damages that would accrue if a breach of this provision occurred in the future and the relevant employee terminated his or her employment with Abacus as a result. Client agrees that the amount of liquidated damages is fair and reasonable and would not act as a penalty in such an instance. This Paragraph shall not preclude Client from hiring an Abacus employee where that employee independently responded to a job posting made available to the general public.
17. Suspension – Abacus may, at its sole discretion, suspend Client’s AbacusNext Software Subscription if Client’s account is 5 days past due. In the event that Abacus suspends Client’s AbacusNext Software Subscription, Client’s AbacusNext Software will convert to read only format (or in the case of OfficeTools software the application will no longer provide any functionality), and Client will not have the ability to import or manipulate data within the program(s). If Client wishes to reinstate its AbacusNext Software Subscription, Client must make its account current and pay a re-activation fee of $250 (“Re-Activation Fee”).
18. Termination by Client – Client may not terminate its AbacusNext Software Subscription for any reason other than a material breach of these Terms which remains uncured for thirty (30) days from Abacus’ receipt of Notice of the alleged breach (the “Cure Period”). In order for a Notice of material breach to be deemed sufficient, Client must identify the specific contractual obligation that was breached by Abacus, provide particular facts to support the allegation of breach, and must cooperate with and provide access to Abacus in order for Abacus to observe, replicate, and troubleshoot the reported issue throughout the Cure Period. If after giving the requisite notice of an alleged material breach, Client refuses to allow Abacus to evaluate the nature of the alleged breach or otherwise fails to cooperate with Abacus’ efforts to cure the alleged breach, Abacus shall be relieved of any obligation to cure the alleged breach, and will eliminate Client’s ability to terminate Client’s AbacusNext Software Subscription for cause (with respect to that alleged breach). For termination of Client’s AbacusNext Software Subscription (or any part thereof, including downgrading an account) for any reason other than for cause, Client shall pay the Early Termination Fee, which shall be equal to any remaining unpaid portion of the Payment.
19. Termination by Abacus – Abacus may terminate Client’s AbacusNext Software Subscription for any reason by providing thirty (30) days’ Notice of termination. In the event of Termination by Abacus under this section, Abacus shall refund any unused portion of fees pre-paid by Client for Client’s AbacusNext Software Subscription. For Trial subscriptions, unless the Client does not subscribe for a full term, the Client’s subscription will automatically terminate at the trial end.
20. Acceptable & Fair Use Policy – By using AbacusNext products and services or by accepting these Terms, Client warrants the following: (i) Client shall not use AbacusNext products for any illegal purpose; (ii) Client shall not use AbacusNext products or services in a manner that infringes on the intellectual property rights of a third party; (iii) Client shall not assign multiple individual named humans to a single license; licenses are sold on a “per seat” basis; (iv) Client shall not use any API, integration, third party software, or otherwise use AbacusNext products and services in a way that circumvents the requirement for each unique individual to have a license, and Abacus reserves the right to rate limit use of APIs should usage of such APIs is measured to be disproportionate to the number of users associated with Client’s AbacusNext Software Subscription; (v) Client shall not license, sublicense, sell, resell, use as a service bureau, transfer, assign, distribute, or otherwise use or commercially exploit AbacusNext Software for a third party’s benefit unless specifically authorized by Abacus pursuant to a mutually executed written agreement; (vi) as it relates to HotDocs Advance, Client shall not use Cloud APIs for batch processing either simultaneously or in rapid succession without prior written consent by Abacus; (vii) as it relates to HotDocs Advance, Client shall not use the “Client Interviews” feature or “Public Interviews” feature for Client’s employees, agents, affiliates, service providers, collaborators or an individual or entity who repeatedly accesses HotDocs interviews unless such individual is a licensed User, as such, use of these interviews in collaboration with the same third party for repeated transactions is strictly prohibited (absent a publisher license); (viii) Client has the legal right as a data controller to provide Client’s Data to Abacus for Abacus to process; (ix) Client shall not disassemble, decompile, reverse engineer, copy, reproduce, modify, or create any derivative work of any AbacusNext products or services; (x) Client shall not allow for individuals outside of Client’s organization to use AbacusNext products or services without a publisher license (this prohibition does not include to the use of public interviews); (xi) Client shall not resell or otherwise charge third parties for the use of any AbacusNext product or services (this prohibition includes but is not limited to external or public interviews); (xii) Client not shall use AbacusNext software products or services in any fraudulent manner; (xiii) Client shall promptly provide notice to Abacus of any violation of this Acceptable & Fair Use Policy or any other violation by Client of these Terms; (xiv) Client is not an employee, associate, contractor, agent, or other related party of a competitor of Abacus.
21. Disclaimer of Warranty – ABACUS TRIES TO KEEP ALL OF THE PRODUCTS AND SERVICES THAT COMPRISE CLIENT’S ABACUSNEXT SOFTWARE SUBSCRIPTION OPERATING BUG-FREE, AND SAFE, BUT CLIENT ACKNOWLEDGES THAT ITS USE OF THOSE PRODUCTS AND/OR SERVICES IS AT ITS OWN RISK. ABACUS IS PROVIDING THE PRODUCTS AND SERVICES THAT COMPRISE CLIENT’S ABACUSNEXT SOFTWARE SUBSCRIPTION AS IS WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. ABACUS DOES NOT GUARANTEE THAT THE PRODUCTS AND/OR SERVICES THAT COMPRISE CLIENT’S ABACUSNEXT SOFTWARE SUBSCRIPTION WILL ALWAYS FUNCTION WITHOUT DISRUPTIONS, DELAYS OR IMPERFECTIONS. ABACUS FURTHER EXPRESSLY DISCLAIMS ANY WARRANTY THAT ABACUS PRODUCTS WILL FUNCTION WHEN INTEGRATED OR COMBINED WITH THIRD-PARTY SOFTARE PRODUCTS, INCLUDING BUT NOT LIMITED TO MICROSOFT PRODUCTS.
ABACUS DOES NOT MAKE ANY REPRESENTATION THAT CLIENT’S USE OF ANY ABACUSNEXT SOFTWARE PRODUCT WILL COMPLY WITH ANY LEGAL REQUIREMENTS IN A PARTICULAR JURISDICTION. CLIENT IS SOLELY RESPONSIBLE FOR DETERMINING WHETHER THE USE OF THE APPLICABLE ABACUSNEXT SOFTWARE IS IN ACCORDANCE WITH THE LAWS AND REGULATIONS OF ANY JURISDICTION TO WHICH CLIENT MAY BE SUBJECT.
22. Limitation of Liability – WITH THE EXCEPTION OF ANY UNAUTHORIZED COPYING AND/OR DISTRIBUTION OF ANY OF THE PRODUCTS AND/OR SERVICES THAT COMPRISE CLIENT’S ABACUSNEXT SOFTWARE SUBSCRIPTION BY CLIENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, LOSS OF BUSINESS OPPORTUNITY, BUSINESS INTERRUPTION, LOSS OF GOOD WILL, DAMAGE TO BUSINESS REPUTATION, LOSS OF BUSINESS INFORMATION, WORK STOPPAGE, LOSS OF DATA, COMPUTER FAILURE OR MALFUNCTION, OR OTHER SUCH PECUNIARY LOSS), WHETHER UNDER A THEORY OF CONTRACT, WARRANTY, TORT, OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL ABACUS’ TOTAL AGGREGATE AND CUMULATIVE LIABILITY TO CLIENT FOR ANY AND ALL CLAIMS OF ANY KIND ARISING AS A RESULT OF OR RELATED TO CLIENT’S ABACUSNEXT SOFTWARE SUBSCRIPTION, THESE TERMS, OR TO ANY ACT OR OMISSION OF ABACUS, EXCEED THE AMOUNT OF SUBSCRIPTION FEES ACTUALLY PAID (IF ANY) BY CLIENT FOR CLIENT’S ABACUSNEXT SOFTWARE SUBSCRIPTION GIVING RISE TO THE CLAIM IN THE SIX MONTHS PRECEDING THE CLAIM. WHERE CLIENT HAS PAID THE TOTAL CONTRACTUAL VALUE UPFRONT, ABACUS’ TOTAL LIABILITY FOR ANY AND ALL CLAIMS WILL NOT EXCEED THE EQUIVALENT OF SIX-MONTHLY RECURRING CHARGES (MRC). WHERE CLIENT PAYS AN ANNUAL RECURRING CHARGE, ABACUS’ TOTAL LIABILITY FOR ANY AND ALL CLAIMS WILL NOT EXCEED THE EQUIVALENT OF SIX-MONTHLY RECURRING CHARGES (MRC). LIKEWISE, WITH THE EXCEPTION OF CLAIMS ARISING OUT OF THE UNAUTHORIZED COPY OR DISTRIBUTION OF THE PRODUCTS AND/SERVICES THAT COMPRISE CLIENT’S ABACUSNEXT SOFTWARE SUBSCRIPTION BY CLIENT, CLIENT’S TOTAL AGGREGATE AND CUMULATIVE LIABILITY TO ABACUS FOR CLAIMS ARISING OUT OF CLIENT’S ABACUSNEXT SOFTWARE SUBSCRIPTION OR THESE TERMS SHALL NOT EXCEED THE EARLY TERMINATION FEE (AS DEFINED ABOVE). THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT THE POTENTIAL LIABILITY OF THE PARTIES ARISING FROM THIS AGREEMENT. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN THIS PARAGRAPH ARE INTEGRAL TO THE AMOUNT OF FEES CHARGED IN CONNECTION WITH MAKING CLIENT’S ABACUSNEXT SOFTWARE SUBSCRIPTION AVAILABLE TO CLIENT AND THAT, WERE ABACUS TO ASSUME ANY FURTHER LIABILITY OTHER THAN SET FORTH HEREIN, SUCH FEES WOULD OF NECESSITY BE SET SUBSTANTIALLY HIGHER. THIS LIMITATION OF LIABILITY APPLIES EQUALLY TO CLAIMS RELATED TO THIRD PARTY SOFTWARE AND ITS OWNERS AND PROVIDERS.
23. Indemnification – Client shall fully indemnify, hold harmless and defend Abacus and its directors, officers, employees, agents, stock holders, subsidiaries and affiliates (collectively “Abacus Indemnified Parties”) from and against all claims demands, actions, suits, damages, liabilities, losses, settlements, judgments, costs and expenses (including but not limited to reasonable attorney’s fees and costs), whether or not involving a third party claim, which arises out of or relate to (1) any breach of any representation or warranty of Client contained in these Terms, (2) any breach or violation of any covenant or other obligation or duty of Client under these Terms or under applicable law, and (3) any violations of any applicable privacy laws caused by errors or omissions of Client. Abacus shall fully indemnify, hold harmless and defend Client and its directors, officers, employees, agents, stock holders, subsidiaries and affiliates (collectively “Client Indemnified Parties”) from and against all claims demands, actions, suits, damages, liabilities, losses, settlements, judgments, costs and expenses (including but not limited to reasonable attorney’s fees and costs), involving a claim that AbacusNext Software products infringe on the intellectual property rights of a third party, except where Client’s conduct is the cause of the alleged infringement.
24. Assignment – Client shall not directly or indirectly assign, transfer, convey, pledge, encumber or otherwise dispose of any rights or obligations under this Agreement without the prior written consent of Abacus, which consent will not be unreasonably withheld. Any assignment made without Abacus’ consent is void and ineffective.
25. Anti-Bribery – Abacus has an anti-bribery and anti-corruption policy. Abacus shall maintain and comply with the policy. Abacus shall provide a copy of the prevailing anti-bribery upon request.
26. Severability – If any provision of these Terms is held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
27. Integration – These Terms, the Knowledge Base, and the corresponding Order Form(s) executed by Client (which are incorporated by reference) set forth the entire agreement relating to the subject matter hereof and supersede all prior agreements, discussions and understandings between them, whether oral or written, relating to the subject matter hereof. These Terms supersede any prior edition of terms and conditions or End User License Agreements with respect to AbacusNext Software Products.
28. Governing Law – WHERE PERMITTED UNDER THE APPLICABLE LAW, CLIENT AND ABACUS AGREE THAT EACH PARTY MAY ONLY BRING CLAIMS AGAINST THE OTHER PARTY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. NO ARBITER OR JUDGE MAY CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS UNDER THESE TERMS AGAINST EITHER PARTY TO THIS AGREEMENT WITHOUT THE WRITTEN CONSENT OF BOTH PARTIES.
If Client’s AbacusNext Software Subscription was purchased from Abacus Data Systems, Inc., these Terms, any corresponding Order Form executed by Client, and any claim arising out of or in connection thereto (including any non-contractual disputes, acts or omissions, or claims in contract, tort, or otherwise), shall be construed under the laws of the State of California regardless of conflict of law provisions. Client and Abacus irrevocably consent to the exclusive venue of the state or federal courts in San Diego County, California. Neither party will bring any legal action more than two years after the cause of action arose. Client and Abacus further agree that as a condition precedent to instituting any legal action, the parties must participate in a non-binding mediation in San Diego, California before a neutral from JAMS, with the parties equally splitting the costs of that mediation. If the parties cannot agree on a JAMS neutral, the neutral shall be selected by JAMS at its sole discretion. The mediation process shall be initiated by the aggrieved party submitting the case for mediation to JAMS directly, after providing the other party with notice of its intent to institute mediation.
If Client’s AbacusNext Software Subscription was purchased from AbacusNext International, Ltd., these Terms and any corresponding Order Form executed by Client, and any claim arising out of or in connection thereto (including any non-contractual disputes or claims), shall be governed by and construed in accordance with the laws of England and Wales. Each of the parties irrevocably submits for all purposes (including any non-contractual disputes or claims) to the exclusive jurisdiction of the courts in England and Wales.
29. Prevailing Party – In the event of any litigation arising out of or related to Client’s AbacusNext Software Subscription, these Terms, any corresponding Order Form executed by Client and/or Client’s AbacusNext Software Subscription, the prevailing party shall be entitled to recover from the non-prevailing party all costs and expenses associated with such proceedings, including reasonable attorney’s fees. For purposes of this provision, if a matter is filed in any venue other than the venue specified the Governing Law section, and the matter is dismissed for improper venue, the party that did not file the action shall be deemed the prevailing party in that action.
30. Updates/Changes to Services and Terms – Due to changes in technology and the marketplace, Abacus may make modifications to the products or services that Comprise Client’s AbacusNext Software Subscription or particular components of such product or service (including but not limited to discontinuing a component) from time to time and will use commercially reasonable efforts to notify Customer of any material modifications. Any such modification shall not be deemed to violate the Software Warranty, and Client agrees that Abacus will not be liable to Client for any such modifications. Abacus reserves the right to discontinue offering a Client’s AbacusNext Software Subscription at the conclusion of Client’s then current subscription term. Likewise, Abacus reserves the right to routinely update, amend or change these Terms. At least 30 days prior to the effective date, Abacus will notify client by e-mail of such changes, and a new Terms document will be posted at www.abacusnext.com/softwareterms/. Client’s continued use of the Services after the 30 days will serve as consent to the changed terms.
31. Notices – All notices to Client under this Agreement will be deemed given when delivered via e-mail to the address set forth in the Service Order. All notices to Abacus under this Agreement will be deemed given when delivered via certified mail to:
Abacus Data Systems, Inc.
3262 Holiday Court
La Jolla, CA 92037
(With an e-mail copy to firstname.lastname@example.org)
33. Maintenance of Records; Audit Right – During the term of Client’s AbacusNext Software Subscription (and for one year after the expiration of the Term), Client shall maintain complete, accurate and detailed records regarding the number, location, and identity of all users, servers, and installations of AbacusNext Software. Upon prior written notice, Abacus or its authorized representative may conduct an audit of Client’s users, and installations of AbacusNext Software. At Abacus’ election, such audit may be conducted on Client’s premises or remotely. Upon completion of the audit, where Abacus determines that Client is using or has used its software in an unauthorized fashion (e.g. exceeding the allotted number of Users), then Client acknowledges and agrees that a fee increase will apply at then-current list prices on Client’s AbacusNext Software Subscription, effectively immediately, backdated to the commencement of the Term of Client’s AbacusNext Software Subscription, and the total amount owed will be amortized over the remainder of the Term of Client’s AbacusNext Software Subscription.
34. Export Control – AbacusNext Software products are subject to U.S. and foreign export control laws. Client shall not ship, transfer, export or re-export AbacusNext Software Products into any country, or use them in any fashion prohibited by the United States Export Administrations Act or Regulations or any other applicable laws, restrictions, or regulations.
35. Subcontracting – Abacus may subcontract any work under these Terms and Conditions to any third party or Affiliate without Client’s prior written consent. Subject to the limitation of liability provision above, Abacus shall remain responsible for the performance acts and omissions of any subcontractor or Affiliate.