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The scope of services subject to these Terms and Conditions (“Services”) are exclusively those that Abacus Data Systems, Inc. (“Abacus”) provides to Client in direct connection with Abacus Core Cloud (“ACC”) hosting services. These terms and conditions apply to all Service Orders and/or Service Order Addendums (if any) affirmatively accepted by Client for Abacus Core Cloud (which are incorporated by reference into the Terms and Conditions), or to any purchases made by Client for Abacus Core Cloud that are made by or on behalf of Client on a website operated by Abacus or its affiliates (the “Purchase”).

1. Abacus Core Cloud– In any Service Order Form and/or Service Order Addendum (if any) affirmatively accepted by Client for ACC and herein, “Abacus Core Cloud” means a subscription (per a designated number of unique users) to access and use a dedicated virtual cloud server(s). (This subscription is hereinafter referred to as “Client’s Abacus Core Cloud Subscription” and the number of Users, Storage, and Applications is hereinafter referred to as “Client’s ACC Environment”). Abacus may modify the computing environment used to provide Client’s ACC Environment without degrading its functionality or security features, however, the server specifications shall be no less than a Windows Server 2019 running Parallels (accessible via an HTML5 web browser and/or the Parallels client) using enterprise grade server hardware, networking, security, and software technologies, and housed in Abacus’ highly available and redundant data center environments located in the United States of America (unless the Service Order Form states that the data centers are to be located in Canada, in which case the redundant data center environments will be located in Canada). Each ACC Environment shall be provisioned with included Storage. To the extent that Client wants or necessitates having a static IP address associated with Client’s ACC Environment, Abacus shall add each additional static IP address to Client’s ACC Subscription at a $25.00 Monthly Recurring Charge (subject to availability). Client acknowledges and understands that due to availability limitations outside Abacus’ control, Abacus is unable to discount the price for a static IPv4 address.

Client’s ACC Subscription is provided subject to size limitations on Client’s ACC Environment. When Client reaches a total of two-hundred and fifty gigabytes (250 GB) for Client’s Shared Storage (Firm Files), Client must convert its ACC Subscription to an Abacus Private Cloud (“APC”) Subscription (at then-current prices) before any additional User or Storage amounts can be sold or provisioned.

IN ORDER TO MAINTAIN THE SAFETY AND SECURITY OF CLIENT’S ACC ENVIRONMENT, CLIENT ACKNOWLEDGES THAT CLIENT WILL NOT RECEIVE ADMINISTRATIVE RIGHTS TO CLIENT’S ACC ENVIRONMENT OR ANY SUB-PART THEREOF.

2. Fees and Invoicing– Client agrees to pay Abacus the Activation Fee and either the Total Contractual Value (upfront), or the Monthly Recurring Charges (“MRC”) each month for the full term of Client’s Abacus Core Cloud Subscription, or the Annual Recurring Charges (“ARC” = 12 x MRC) and other fees as set forth in the applicable Service Order Form together with any taxes payable by Client that are required to be collected by Abacus pursuant to any applicable law. Any fees listed in a Service Order Form or Service Order Addendum are set forth in US Dollars unless specifically indicated on the Service Order Form or Service Order Addendum that the charged are in CAD. To the extent Client wishes to be billed in Canadian Dollars, at the time of signature, Abacus will take the 30-day average of the conversion from US Dollars to Canadian, and charge that rate for the duration of Client’s Initial Term. Client’s MRC or ARC is billed in advance of Abacus providing the services arising out of Client’s Abacus Core Cloud Subscription for that month or year. Upon 30 days advance notice, Abacus shall have the right to increase fees charged for power or third-party services, applications or utilities (where applicable) in the same percentage as the increase imposed upon Abacus. Upon request, Abacus shall provide Client with a written statement of such cost increases. Client authorizes Abacus to automatically bill the Client’s credit card or process an Automated Clearing House transaction each month (or year as applicable) for the balance due. All payments made by Client to Abacus are non-refundable. 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 and Conditions that are greater than 15 days past due shall bear interest at the rate of one and one-half percent per month.

3. Term– The term of Client’s Abacus Core Cloud Subscription commences on either (1) the date when Abacus provides Client access to Client’s ACC Environment via Parallels (regardless of whether any other third party software license keys or application files have been inputted into Client’s ACC Environment by Client or (2) in the event that Client fails to provide Abacus with requested information necessary for Abacus to provision Client’s ACC Environment, 30 days after Abacus made the request for the information. The term shall continue for the minimum term set forth in the Service Order Form affirmatively accepted by Client for Abacus Core Cloud (subject to Service Suspension and Termination as set forth in Paragraphs 26 and 27 below) (“Initial Term”). Absent either party providing the other with written notification (as required pursuant to Paragraph 40 below) at least 60 days prior to the expiration of the Initial Term or any subsequent Renewal Term, Client’s Abacus Core Cloud Subscription will automatically renew for a twelve (12) month term (“Renewal Term”) subject to a price increase. The only items included as part of Client’s ACC Subscription that are offered at a month-to-month Term are “Flex Users,” which can be terminated thirty (30) days’ from the latter of: (1) Client creating a support ticket for the deactivation of the Flex User(s); and Client’s execution and submission of a Downgrade Authorization Form.

4. Default Configuration– Unless otherwise specified in a Service Order Form or Service Order Addendum, all ACC Environments shall be delivered with stock configurations (which include but are not limited to configurations related to Storage, Users, Resources, and Applications, geolocation based access filtering, password cycling policies, and multi-factor authentication, and herein referred to as “Default Configuration”). In order to access Client’s ACC Environment, Client must meet all system requirements discussed herein, including but not limited to a Reliable Connection and a compatible Web Browser. Abacus reserves the right at its sole discretion to change and/or incorporate and implement new security practices and protocols to the configuration of Client’s ACC Environment. Where available, Professional Services can be retained on an hourly basis to make any changes to the Stock Configuration of Client’s ACC Environment. Any such services shall be governed by a separate SOW, and all such changes shall be deemed allowable at Abacus’ sole discretion. Client further acknowledges and agrees that any requested changes or customizations to the Default Configuration of Client’s ACC Environment shall not alter Client’s obligations with respect to Abacus’ Acceptable Use Policy defined in Paragraph 29 – Acceptable Use.

5. Users– Each individual accessing Client’s ACC Environment (“User”) must have unique log-in credentials assigned to each User, and all Users must access Client’s ACC Environment in accordance with Abacus’ Acceptable Use Policy defined in Paragraph 29 – Acceptable Use. In order to access Abacus Core Cloud, each Users hereby agrees to be bound by the Parallels End-User License Agreement which is set forth at https://www.parallels.com/about/legal/eula/. The use of generic users is not permitted. The number of Users that may be included in Client’s Abacus Core Cloud Subscription will depend on the specific needs of the Client (subject to certain limitations). Client may purchase user licenses its employees to use all included line of business apps within Client’s ACC Enviornment, the specified Storage amounts per user, and use of Microsoft Word and Microsoft Excel (hereinafter a “Business User”). Client may also purchase user licenses for its customer users to use all included line of business apps within Client’s ACC Enviornment, the specified Storage amounts per user, and may also purchase access for those customer users to use Microsoft Word and Microsoft Excel (hereinafter a “Business Collaborative User”).

6. Storage – (document, application, etc.) – Client’s ACC Environment shall be allocated the following amounts of available storage:

Any additional Storage other than the amounts listed above requires a separate purchase, subject to the minimum and maximum storage requirements set by Abacus.

7. Applications – In addition to any AbacusNext provided software purchased by Client, by way of a Service Order Form, Service Order Addendum, or purchased on a website offered by Abacus or its affiliates (as discussed further below), AbacusNext will also provide each Business User access to Microsoft Word, Microsoft Excel, and any other line of business application approved for Client’s ACC Environment (subject to Client providing a license for that application). Business Collaborative Users will only receive access to the approved line of business applications (e.g. Quickbooks, Adobe Reader); a license for each Business Collaborative User to use Microsoft Word and Microsoft Excel requires a separate purchase. Where Client hosts QuickBooks within Client’s ACC Environment, Quickbooks licensing is not included within Client’s ACC Subscription,Client must procure its own QuickBooks licensing separately.

8. Web Browser – In order to access Client’s ACC Environment, Client must use a web browser that is able to secure a Reliable Connection over the internet (“Web Browser”). Experiences may vary, and Client may select a compatible browser at its discretion, but Abacus recommends Google Chrome for the best possible results.

9. Data Center Security– Client acknowledges that all data centers are prone to intrusion. To address this concern, Abacus will maintain at all times what are generally considered to be enterprise-class security protecting its data centers used to host Client’s ACC Environment.

10. Viruses and Malware– Client acknowledges that no computer system or software can be made completely stable or secure, and that Abacus cannot guarantee that Client’s ACC Environment will not be subject to viruses or malware or other threats. To address this concern, Abacus shall provide what are generally considered enterprise class proactive and routine monitoring and protection of Client’s ACC Environment from viruses and malware. Client also acknowledges that it may become exposed to viruses or malware if it turns off protections, disregard warnings, or accesses its ACC Environment from a device that is infected. Abacus recommends that client maintain virus and malware protection on every device that accesses Client’s ACC Environment.

11. Passwords– Access to Client’s ACC Environment is limited by certain password requirements. It is Client’s responsibility to ensure that its passwords to Client’s ACC Environment are maintained as confidential information, this includes but is not limited to immediately informing Abacus when any of Client’s users’ access to Client’s ACC Environment should be terminated or suspended. Client acknowledges that the failure to properly maintain and routinely change its passwords could jeopardize the security of Client’s data maintained on Client’s ACC Environment.

12. Backup Systems– During the term of Client’s Abacus Core Cloud Subscription, Abacus shall perform incremental daily backups of Client’s ACC Environment which will be stored at Abacus’ primary data center as well as at Abacus’ secondary data center (which is in a different state/province than the primary data center) for 30 days. Except where Client’s data is lost or damaged as a result of a System Related Error (as defined in Paragraph 16 below), the restoration of Client’s data from a backup is outside the scope of Abacus’ obligations set forth in these Terms and Conditions. Professional Services can be retained on an hourly basis to assist with the restoration of data from a backup. Any such services shall be governed by a separate SOW. Client acknowledges that due to security concerns, no one other than Abacus can perform the task of restoring Client’s data from a backup.

13. Migration of Client’s Data to/from Client’s ACC Environment– Migration of Client’s data to Client’s Abacus Core Cloud is outside the scope of Abacus’ obligations set forth in these Terms and Conditions. Migration, input, or uploading of Client’s data is Client’s sole obligation. Where available, Professional Services may be retained on an hourly basis to assist with data input. Any such services for additional data migration shall be governed by a separate SOW. To the extent Client provides Abacus with data for the purposes of migrating that data to Client’s ACC Environment, Client herby confirms that it has the legal right to have that data migrated to it ACC Environment. Client further acknowledges that if a dispute arises over whether Client has the legal right to possess or control the data prior to Abacus performing the migration, Abacus will not migrate the data to Client’s ACC Environment absent written authorization from the party originally disputing Client’s right to the data or a court order.

14. Third Party Applications and Services– Except as it relates to the installation of AbacusNext software products if purchased (as discussed further below), approved Microsoft software products (if identified in the Purchase for Client’s ACC Subscription and provided by Abacus via the Microsoft Service Provider License Agreement (SPLA) or Microsoft Cloud Solutions Provider (CSP) programs, as mandated by Microsoft’s software licensing terms), there shall be no additional installation or integration of third-party software or services related to Client’s ACC Environment. Any performance related to third-party software or services is outside the scope of Abacus’ obligations as set forth in these Terms and Conditions. All issues with the functionality of the third-party software or services should be directed to the particular software service provider.

15 – Standard Support– Client’s ACC Environment is monitored by Abacus’ network operating center 24/7 365. Client can reach Abacus’ Abacus Core Cloud Customer Support by calling(888) 329-5833or via e-mail at ACC@abacusnext.com. Abacus’ Customer Service business hours are Monday through Friday from 5:00AM to 9:00PM Pacific and Saturday and Sunday from 6:00AM to 5:00PM Pacific (except certain holidays), during which time Abacus will use its best efforts to respond to all calls or e-mails to Customer Support within an hour of receipt. Abacus’ obligation to provide Client with customer service or support is contingent upon Client timely paying that month’s MRC and keeping the account current. For non-business hours, Abacus will use its best efforts to maintain a Mean Time to Respond (“MTTR”) of 1 hour for “Urgent” issues and next business day for “Non-Urgent” issues. An issue shall be deemed “Urgent” if Client cannot connect to Client’s ACC Environment, data stored in Client’s ACC Environment, and/or Client’s e-mail in MS365 where Client purchased MS365 through a Service Order or Service Order Addendum. All other issues shall be deemed “Non-Urgent.” If Abacus determines that the reported issue is caused by an error with Abacus’ infrastructure or in Client’s ACC Environment (hereinafter referred to as “System Related Error”) and not caused by the Client, its computer(s), printer(s), scanners, other hardware, network, server(s), connectivity or third-party software or services (hereinafter referred to as “User Error”), then Abacus will make its best efforts to correct the problem at no charge to Client. Reported errors that cannot be observed or replicated by Abacus cannot by definition be a System Related Error. If the issue is caused by User Error, Client can purchase Professional Services hours to assist with further training and/or correcting the problem with Client’s computer(s), network, server(s), connectivity or third-party software or services. All such Professional Services shall be governed by a separate SOW.

In order to facilitate a consultative sales process for Abacus Core Cloud, and to allow Abacus to make recommendations to Client about which products and services to purchase, Abacus may employ network diagnostic tools and questionnaires to learn about and analyze Client’s workflow, business systems, applications, and connectivity. Client expressly acknowledges that any issue arising out of Abacus’ inability to gather information or make recommendations about products and services shall not constitute a System Related Error, or otherwise provide a basis to cancel or void Client’s ACC Subscription.

16 – ADVANCED SUPPORT – Clients can purchase the following advanced support options to optimize their Abacus Core Cloud (“ACC”) experience.

17. Service Level Agreement (SLA)– Abacus will use commercially reasonable efforts to make Client’s ACC Environment “available” to Client 99.999% of the time (calculated monthly) outside of scheduled maintenance, emergency maintenance, the rebooting of Client’s ACC Environment after adding or reducing resources, connectivity issues caused by User Error, or the suspension of Client’s Abacus Core Cloud Subscription. In this context, “available” shall mean that Client’s ACC Environment is accessible via a Reliable Connection (as defined below) from an ACC Compatible Device (as defined below) via a compatible Web Browser or the Parallels client.

In the event that Client believes that Abacus has failed to meet the Service Commitment in a particular month, Client will be eligible to receive a Service Credit only if Client requests a Service Credit via email to billing@abacusnext.com within 7 days of the end of such month and it is determined by Abacus that Abacus failed to meet the Service Commitment for that month. Where Client is eligible for a Service Credit, the Client will be credited an amount equal to one day’s worth of MRC, multiplied by each hour (or portion thereof round to the next hour) Abacus failed to meet the Service Commitment in that month, however, at no point will Client be entitled to a Service Credit that exceeds the amount of MRC for Client’s Abacus Core Cloud Subscription for that month. Any Service Credit will be applied to any invoice of Client within two billing cycles after Abacus’ receipt of the applicable request for Service Credit. Service Credits are exclusive of any applicable taxes charged to Client or collected by Abacus. A Service Credit is Client’s sole and exclusive remedy for a breach of the Service Commitment.

Client acknowledges that it shall not receive any credits under this SLA if the failure or deficiency is caused by a suspension or termination of Client’s Abacus Core Cloud Subscription pursuant to Paragraph Nos. 26 and 27, caused by Client, Client’s equipment, software or other technology, or caused by factors outside of Abacus’ reasonable control, including but not limited to any force majeure event, Internet access or related problems beyond the demarcation point of Abacus’ Internet Protocol routing infrastructure.

18. Scheduled Maintenance– Every Friday at 11:00PM through Saturday 3:00AM and every Saturday at 11:00PM through Sunday 3:00AM(in the time zone of the primary data center in which Client’s Abacus Core Cloud Environment is hosted), Abacus provides weekly maintenance “windows” for routine and ongoing maintenance to include but not limited to: infrastructure improvements or changes, Microsoft published updates (when available) to Client’s Microsoft Windows server and Microsoft Office platform (if applicable). For all other scheduled maintenance, Abacus shall provide Client with e-mail notification of when the maintenance shall take place. Client acknowledges that during any scheduled maintenance, Client’s ACC Environment may be unavailable, and thus this time shall not be considered in calculating whether Client’s ACC Environment is “available” per the SLA (see Paragraph 17).

19. Client’s Data– Client will retain ownership of all data Client transfers to and stores on Client’s ACC Environment. It shall be Client’s sole responsibility to upload all license keys for Client’s applications that are used within Client’s ACC Environment (including but not limited to Quickbooks), as well as to upload any associated data (including but not limited to files, names, contact information, and other data). Client reserves all right, title and interest (including all intellectual property and proprietary rights) to Client’s content and data. Abacus acknowledges that Client’s data stored in Client’s ACC Environment contains confidential information. Abacus will only access Client’s data when necessary to fulfill an obligation related to Client’s Abacus Core Cloud Subscription. Abacus further warrants that it will take all reasonable efforts to maintain the confidential nature of Client’s data and unless required by law will not knowingly disclose the data or its contents to third parties without the Client’s express written consent. Abacus will provide Client notice of any unauthorized third-party access to Client’s data of which Abacus becomes aware and will use reasonable efforts to remediate identified security vulnerabilities. To the extent there is any unauthorized third-party access to Client’s data, it shall be Client’s sole responsibility and expense to notify any individual whose Personal Identifiable Information or other confidential information related to that individual was accessed by an unauthorized third party. To the extent Client provides Abacus with data for the purposes of migrating that data to Client’s ACC Environment, where available under a separate executed SOW for Professional Services, Client hereby confirms that it has the legal right to have that data migrated to it ACC Environment. Client further acknowledges that if a dispute arises over whether Client has the legal right to possess or control the data prior to Abacus performing the migration, Abacus will not migrate the data to Client’s ACC Environment absent written authorization from the party originally disputing Client’s right to the data or a court order. Client will have 30 days as of the date of cancellation or termination of its Abacus Core Cloud Subscription to obtain (at Client’s sole cost and expense) all of Client’s data from Client’s ACC Environment, after which time Client’s data will be deleted from Abacus’ servers permanently. Abacus Professional Services may be retained on an hourly fee basis to assist Client with the migration of its data from Client’s ACC Environment. If purchased, such services, will be governed by a separate SOW.

20. ACC Compatible Devices– Successful use of Client’s ACC Environment requires a device (PC, MAC, tablet or smartphone) using an operating system currently being supported by Microsoft, Apple or Android, running a compatible Web Browser, and is malware and spyware free. As used herein, such a device shall be referred to as an “ACC Compatible Device.” It is outside Abacus’ obligations set forth in these Terms and Conditions to supply Client with any ACC Compatible Devices. Where Two Factor Authentication (see Section 29) is activated, each User will need a Registered Phone to facilitate a User logging in to Client’s ACC Environment. It is outside Abacus’ obligations set forth in these Terms and Conditions to supply a user with a smartphone capable of supporting Two Factor Authentication.

21. Reliable Connection– Successful use of Client’s ACC Environment requires a properly routed internet connection that can reliably sustain a sub 100 millisecond (ms) response time between the network that Client’s ACC Compatible Device is connected to and Client’s ACC Environment. Where more than one of Client’s Abacus Core Cloud users are trying to connect to Client’s Abacus Core Cloud Environment through the same internet connection concurrently, there must be a minimum of 1Mbps/1Mbps dedicated to each one of those users. As used herein, the above stated connectivity requirement shall be referred to as a “Reliable Connection,” and it shall be Client’s sole responsibility to obtain a Reliable Connection. Abacus works with multiple upstream providers to ensure that Client has multiple paths through which an internet connection may be routed to Client’s ACC Environment. Abacus cannot control how Client’s Internet Service Provider(s) routes its internet traffic. As such, In the event of latency in Client’s internet connection to Client’s ACC Environment, it shall be Client’s sole responsibility to ensure that Client’s Internet Service Provider(s) adequately routes Client’s internet connection. The fact that Client is unable to resolve the latency in Client’s internet connection to Client’s ACC Environment shall not constitute “for cause” for purposes of terminating Client’s Abacus Core Cloud Subscription. It is further recommended that Client have multiple upstream internet service providers to avoid performance issues caused by a single point of failure. For security reasons, Abacus utilizes geo-blocking technology to selectively block access to Client’s ACC Environment from network locations outside of North America. Should Client or Client’s end users need to access Client’s ACC Environment from outside of North America, to avoid delays, it is Client’s responsibility to notify ACC Support at least 48 hours before such access would be required to facilitate access when traveling abroad.

22. Local Area Network– The Local Area Network (LAN) within Client’s office or other locations from which Client may try to access Client’s ACC Environment affects the quality and speed of its Abacus Core Cloud service. The quality and configuration of switches, routers, firewalls, network cabling and computers all have an effect on performance. Optimizing Client’s LAN is not part of Abacus’ obligations pursuant to these Terms and Conditions. Professional Services can be retained on an hourly basis to assist with assessing and optimizing Client’s LAN. If purchased, such services, will be governed by a separate SOW.

23. Printing and Scanning– Printing and Scanning are outside the scope of Abacus’ control and beyond the scope of Abacus’ obligations pursuant to these Terms and Conditions.

24. Two Factor Authentication– In any Service Order Form and/or Service Order Addendum (if any) affirmatively accepted by Client and herein, “Two Factor Authentication” refers to a security measure that requires an Abacus Core Cloud User to confirm an attempted log in to Client’s ACC Environment by responding to a message sent to an authentication application (“Authentication App”) provided by Abacus and installed on the Abacus Core Cloud User’s smartphone (“Registered Phone”), which must have a locking mechanism enabled to function. When Two Factor Authentication has been activated, Client acknowledges that for security reasons, in the event that an Abacus Core Cloud User replaces his/her Registered Phone, changes his/or her phone number associated with his/her Registered Phone, or otherwise cannot use his/her Registered Phone, that Abacus Core Cloud User will not be able to access Client’s ACC Environment unless Abacus receives written confirmation from the Client’s designed Principal Point of Contact that the particular Abacus Core Cloud User has obtained a new phone and/or phone number and the Authentication App is subsequently installed on the new phone (or reinstalled in the instance where the Abacus Core Cloud User has only changed his/her phone number associated with his/her Registered Phone).

25. Sophos Endpoint Antivirus & Malware Protection– In any Service Order Form and/or Service Order Addendum (if any) affirmatively accepted by Client and herein, “Sophos Endpoint Antivirus & Malware Protection” means a non-transferable license to deploy Sophos Endpoint Antivirus & Malware Protection product on Client’s work stations only during the term set forth in the Service Order and/or Service Order Addendum (contingent upon Client timely paying its MRC), and is otherwise governed by all terms and policies set forth by Sophos. For further information on these terms, contact Sophos directly. ABACUS DOES NOT WARRANT THE PERFORMANCE OR FUNCTIONALITY OF SOPHOS ENDPOINT ANTIVIRUS & MALWARE PROTECTION. If purchased, this Sophos Endpoint Antivirus & Malware Protection license will be deemed part of Client’s Abacus Core Cloud Subscription. Thus any suspension or termination of Client’s Abacus Core Cloud Subscription will also result in a corresponding suspension or termination of the Sophos Endpoint Antivirus & Malware Protection license.

26. Service Suspension– Abacus may, at its own discretion, suspend Client’s Abacus Core Cloud Subscription if Client’s account is 15 days past due. During any suspension, Client will not have access to Client’s ACC Environment. Once suspended, if Client wishes to reinstate Client’s Abacus Core Cloud Subscription, Client must make its account current and pay a re-activation fee of $250.

27. Termination– Either party may terminate Client’s Abacus Core Cloud Subscription or any distinct part thereof at any time without cause by providing 30 days written notice to the other party; for security reasons, in order for any termination initiated by Client of Client’s Abacus Core Cloud Subscription in whole or in part to be processed, Client must submit an executed cancellation or downgrade form (whichever applicable) provided by Abacus. In the event of termination of Client’s Abacus Core Cloud Subscription in its entirety by the Client without cause or as a result of Client’s account being delinquent, Client shall pay Abacus the Early Termination Fee, which shall be equal to Client’s MRC times the remaining months left under the agreement (plus any balance owed as effective date of the termination), due and payable as of the date of early termination. In the event of termination of a part or parts of Client’s Abacus Core Cloud Subscription except the termination of Flex Users (including but not limited to the cancellation of a user or MS365) without cause, Client shall pay Abacus the Early Termination Fee, which shall be equal to Client’s MRC times the remaining months left under the agreement for the canceled part or parts of Client’s Abacus Core Cloud Subscription. The only time Client can terminate Client’s Abacus Core Cloud Subscription for cause is if Abacus fails to cure a material breach of these Terms and Conditions within 30 days of Abacus receiving written notice of that breach (in the manner set forth in Paragraph 40 below). In order for such notice to be deemed sufficient, the notice must expressly identify the particular provision(s) of these Terms and Conditions that Client contends has been breached and set forth the facts explaining how each such provision has been breached. With respect to an allegation of breach concerning a System Related Error, in the event that Abacus cannot observe or replicate the reported issue, Abacus shall be relieved of any obligation to cure that System Related Error until the issue can be observed and replicated by Abacus. Where proper notice is given and Abacus fails to timely cure the properly identified breaches, Client would not be obligated to pay the Early Termination Fee. If after giving the requisite notice of an alleged material breach, Client refuses to allow Abacus to access Client’s ACC Environment or data 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 Abacus Core Cloud Subscription for cause (with respect to that alleged breach). Abacus may terminate Client’s Abacus Core Cloud Subscription for cause if Client fails to make its account current and pay the re-activation fee within 30 days of Client’s Abacus Core Cloud Subscription being suspended.

28. Non-Solicitation of Abacus’ Employees– During the term of Client’s Abacus Core Cloud Subscription, 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 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.

29. Acceptable Use– Within Client’s ACC Environment, Client is specifically prohibited from doing the following: using Client’s ACC Environment for an unlawful purpose; violating any local, state, national, foreign, or international statute, regulation, rule, order, treaty or other law; transmitting, distributing, retrieving or storing of data or other material in violation of any applicable law or regulation; advertising, transmitting, storing, posting, displaying, or otherwise making available child pornography or obscene speech or material (outside the lawful school of Client’s duties as an attorney to represent a client); transmitting or posting defamatory, harassing, or threatening language; engaging in activities that Abacus determines in its sole discretion to be harmful to Abacus’ infrastructure, customers, reputation or customer relations; and, engaging in activities designed to assist an Abacus competitor learn about Abacus’ operations and practices. Abacus may at its sole discretion suspend or terminate Client’s Abacus Core Cloud Subscription if Client violates any aspect of this paragraph. By agreeing to Abacus’ Acceptable Use Policy, Client also agrees that Abacus shall maintain the right to audit Client’s use of the products and services included in Client’s ACC Subscription. Client warrants that it will maintain a unique user license for each distinct individual or device accessing Client’s ACC Environment. Client acknowledges and agrees that any improperly licensed or unlicensed use of Client’s ACC Environment, or of any services, applications or utilities deployed therein, should result in Abacus retroactively assessing the associated Monthly Recurring Charge, at Abacus’ then current rates, plus any applicable fees, for any products or services included within Client’s ACC Subscription, backdated to the earliest known violation, or the beginning of the Term of Client’s ACC Subscription, whichever is earlier.

30. Relation of Parties– The performance by Abacus of its duties and obligations under the Terms and Conditions will be that of a service provider, and nothing herein will create or imply an agency relationship between Abacus and Client, nor will the Terms and Conditions be deemed to create a partnership or joint venture between Abacus and Client.

31. Warranty– Client acknowledges that no computer system or software can be made completely stable or secure, and that Abacus cannot guarantee the stability, safety or security of Client’s data. Abacus warrants that Client’s ACC Environment will be maintained in a professional manner, and in conformity with generally prevailing best practices and industry standards.

THIS WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY ORAL OR WRITTEN REPRESENTATIONS, PROPOSALS OR STATEMENTS MADE ON OR PRIOR TO THE EFFECTIVE DATE OF ANY AGREEMENT BETWEEN CLIENT AND ABACUS.

32. Limitation of Liability– 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 THE SERVICES COVERED BY THESE TERMS AND CONDITIONS, OR TO ANY ACT OR OMISSION OF ABACUS, EXCEED THE AMOUNT OF SUBSCRIPTION FEES ACTUALLY PAID (IF ANY) BY CLIENT FOR THE SERVICE 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, EXCEPT AS ADDRESSED IN PARAGRAPH 27, CLIENT’S TOTAL AGGREGATE AND CUMULATIVE LIABILITY TO ABACUS FOR CLAIMS ARISING OUT OF THE SERVICES COVERED BY THESE TERMS AND CONDITIONS SHALL NOT EXCEED THE EARLY TERMINATION FEE (AS DEFINED IN PARAGRAPH 27). 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 THE SERVICE 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.

33. Indemnification– Client shall fully indemnify, hold harmless and defend (collectively “indemnify” and “indemnification”) Abacus and its directors, officers, employees, agents, stock holders, subsidiaries and affiliates (collectively, “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 and Conditions, and (2) any breach or violation of any covenant or other obligation or duty of Client under these Terms and Conditions or under applicable law.

34. Assignment– Neither party may assign the rights and obligations arising out of these Terms and Conditions and/or corresponding Service Orders and Service Order Addendums (if any) affirmatively accepted by Client for Abacus Core Cloud, in whole or in part, at any time, without the prior written consent of the other, which shall not be unreasonably withheld. Provided, however, Abacus may assign its rights and obligations under this Agreement without the consent of Client in the event of a change in control transaction. In the event of the sale or transfer by Abacus of all or substantially all of its assets to an affiliate or to a third party, whether by sale, merger or change of control, Abacus would have the right to assign any and all rights and obligations contained herein and the Agreement to such Affiliate or third party without the consent of Client and the Agreement shall be binding upon such acquirer and would remain in full force and effect, at least until the expiration of the then current term. Subject to the preceding, the rights and obligations arising out of these Terms and Conditions and/or corresponding Service Orders and Service Order Addendums (if any) affirmatively accepted by Client for Abacus Core Cloud will inure to the benefit of and be binding on the parties and their respective successors, heirs and permitted assigns.

35. Transfer of Assets or Business– In the event that Abacus is involved in a bankruptcy, merger, acquisition, reorganization, dissolution or sale of assets, Client’s information may be disclosed, sold or transferred as part of that transaction.

36. Force Majeure– Neither party shall be liable for any loss or delay in the performance of their obligations resulting from a cause over which they do not have reasonable control including, but not limited to, failure of electronic or mechanical equipment or communication lines, telephone or other interconnect or Internet problems, severe weather, earthquakes, nuclear or natural disasters, acts of war or terrorism, or governmental restrictions. It is understood that both parties shall use reasonable efforts which are consistent with accepted practices in the industry to resume performance as soon as practicable under the circumstances.

37. Severability– If any part or parts of these Terms and Conditions, or corresponding Service Orders and/or Service Order Addendum (if any) affirmatively accepted by Client for Abacus Core Cloud are held invalid by a court of competent jurisdiction, the remaining parts of these Terms and Conditions, or corresponding Service Orders and Service Order Addendum (if any) affirmatively accepted by Client for Abacus Core Cloud will continue to be valid and enforceable.

38. Waiver– The waiver by either party of a breach or default in any of the provisions of Terms and Conditions, or corresponding Service Orders and Service Order Addendum (if any) affirmatively accepted by Client for Abacus Core Cloud shall not be construed as a waiver of any succeeding breach of the same or other provisions; nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that is has or may have hereunder operate as a waiver of any breach or default by the other party.

39. Integration– These Terms and Conditions and the corresponding Service Orders and Service Order Addendum (if any) affirmatively accepted by Client for Abacus Core Cloud (which are incorporated by reference) set forth the entire agreement relating to the subject matter hereof and supersedes all prior agreements, discussions and understandings between them, whether oral or written, relating to the subject matter hereof.

40. Notices– All notices to Client under these Terms and Conditions 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:

General Counsel
Abacus Data Systems, Inc.
4850 Eastgate Mall
San Diego, CA 92121

41. Governing Law– These Terms and Conditions and/or any corresponding Service Orders and Service Order Addendum (if any) affirmatively accepted by Client for Abacus Core Cloud 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 jurisdiction and venue of the state or federal courts in San Diego County, California for all disputes arising out of or relating to these Terms and Conditions, Service Orders and Service Order Addendum (if any) affirmatively accepted by Client for Abacus Core Cloud and/or Client’s Abacus Core Cloud Subscription, or the services contemplated therein. Neither party will bring a legal action arising out of or related to these Terms and Conditions, any corresponding Service Orders and Service Order Addendum (if any) affirmatively accepted by Client for Abacus Core Cloud and/or Client’s Abacus Core Cloud Subscription or the services contemplated therein 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.

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 AND CONDITIONS AGAINST EITHER PARTY TO THIS AGREEMENT WITHOUT THE WRITTEN CONSENT OF BOTH PARTIES.

42. Prevailing Party– In the event of any litigation arising out of or related to these Terms and Conditions, any corresponding Service Orders and Service Order Addendum (if any) affirmatively accepted by Client for Abacus Core Cloud and/or Client’s Abacus Core Cloud 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 state or federal courts in San Diego County, California 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.

43. Updates to Terms and Conditions– Abacus reserves the right to routinely update, amend or change the Terms and Conditions of Services. At least 30 days prior to the effective date, Abacus will notify client by e-mail of such changes, and a new Terms and Conditions document will be posted atwww.abacusnext.com/terms. Client’s continued use of its ACC Environment after the 30th day will serve as consent to the changed terms.

44. Data Processing Addendum– The Data Processing Addendum set forth atwww.abacusnext.com/dataprocessingaddendumis expressly incorporated into these Terms and Conditions by reference.

45. AbacusNext Offered Software – Where AbacusLaw is Purchased by Client, in addition to the Terms and Conditions governing Client’s ACC Subscription, to the extent that Client’s Purchase of Abacus Core Cloud Subscription includes AbacusLaw or any AbacusLaw features, Client’s use of those services shall be governed by the AbacusLaw End User License Agreement For Use Within Abacus Core Cloud set forth at www.abacusnext.com/abacuslawacceula (which is incorporated by reference where applicable).

Where OfficeTools is Purchased by Client, in addition to the Terms and Conditions governing Client’s Abacus Core Cloud Subscription, to the extent that Client’s Abacus Core Cloud Subscription includes Office Tools, Client’s use of that service shall be governed by the Office Tools End User License Agreement For Use Within Abacus Core Cloud set forth at www.abacusnext.com/officetoolsacceula (which is incorporated by reference where applicable).