Skip to main content »

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 Private Cloud (“APC”) hosting services. These terms and conditions apply to all Service Orders and/or Service Order Addendums (if any) affirmatively accepted by Client for Abacus Private Cloud (which are incorporated by reference into the Terms and Conditions).

1. Abacus Private Cloud– In any Service Order Form and/or Service Order Addendum (if any) affirmatively accepted by Client for APC and herein, “Abacus Private 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 Private Cloud Subscription” and the number and type of virtual cloud server(s) and corresponding hardware and resources is hereinafter referred to as “Client’s APC Environment”). Abacus may modify the computing environment used to provide Client’s APC Environment without degrading its functionality or security features, however, the server specifications shall be no less than a Windows Server 2012 r2 running Microsoft Remote Desktop Services 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 APC Environment shall be provisioned with up to a 1 TB of Document Storage and up to 50 GB of Application Storage. To the extent that Client wants or necessitates having a static IP address associated with Client’s APC Environment, Abacus shall add each additional static IP address to Client’s APC 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.

IN ORDER TO MAINTAIN THE SAFETY AND SECURITY OF CLIENT’S APC ENVIRONMENT, CLIENT ACKNOWLEDGES THAT CLIENT WILL NOT RECEIVE ADMINISTRATIVE RIGHTS TO CLIENT’S APC 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 Private 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 Private 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 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 Private Cloud Subscription commences on either (1) the date when Abacus provides Client access to Client’s APC Environment via Remote Desktop (regardless of whether any other third party software or applications have been installed in Client’s APC Environment or whether any Client data has been migrated to Client’s APC Environment) or (2) in the event that Client fails to provide Abacus with requested information necessary for Abacus to provision Client’s APC 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 Private Cloud (subject to Suspension and Termination as set forth in Paragraphs 35 and 36 below) (“Initial Term”). Absent either party providing the other with written notification (as required pursuant to Paragraph 49 below) at least 60 days prior to the expiration of the Initial Term or any subsequent Renewal Term, Client’s Abacus Private Cloud Subscription will automatically renew for a twelve (12) month term (“Renewal Term”) subject to a price increase.

4. Default Configuration– Unless otherwise specified in a Service Order Form or Service Order Addendum, all APC Environments shall be delivered with stock configurations (which include but are not limited to configurations related to Server, User, RAM, System Storage, Document Storage, Application Storage, and Processor resource allocations, geolocation based access filtering, password cycling policies, web content filtering, and multi-factor authentication, and herein referred to as “Default Configuration”). 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 APC Environment. Professional Services can be retained on an hourly basis to make any changes to the Stock Configuration of Client’s APC Environment. Any such services shall be governed by a separated 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 APC Environment shall not alter Client’s obligations with respect to Abacus’ Acceptable Use Policy defined in Paragraph 38 – Acceptable Use.

5. Servers– The number and type of virtual cloud servers allocated to Client’s APC Environment will depend upon the specific needs of Client (including but not limited to the number and/or type of users, software/application needs, and Client’s general use case). Client acknowledges that the configuration of Client’s APC Environment and therefore Client’s Abacus Private Cloud Subscription may need to be changed as Client’s needs change. Each Server shall be provisioned with up to 200 GB of System Storage. Depending on Client’s needs, and the number/type of Users (e.g. Standard, Power, Collaborative, Flex) purchased in a Service Order Form and/or Service Order Addendum, Abacus shall provision the following server types:

6. Users– Each individual accessing Client’s APC Environment (“User”) must have unique log-in credentials assigned to each User, and all Users must access Client’s APC Environment in accordance with Abacus’ Acceptable Use Policy defined in Paragraph 38 – Acceptable Use. The use of generic users is not permitted. The number and type of Users that may be included in Client’s Abacus Private Cloud Subscription will depend on the specific needs of the Client (subject to certain limitations). If specified in any Service Order Form and/or Service Order Addendum affirmatively accepted by Client and herein, the following user types shall mean:

7. Random Access Memory (RAM)– In any Service Order Form and/or Service Order Addendum (if any) affirmatively accepted by Client and herein, “Random Access Memory” and/or “RAM” refers to the memory available to operate programs, software or applications in Client’s APC Environment. Pursuant to industry best practices, Abacus recommends that Client’s RAM utilization in Client’s APC Environment not consistently exceed 85% of the allocated amount, as doing so can put Client’s APC Environment at a performance risk. Client acknowledges Abacus cannot predict Client’s RAM usage and thus Client may need to purchase additional RAM in order for Client’s APC Environment to properly function. Abacus will regularly monitor Client’s RAM usage, and may recommend that Client purchase additional RAM. All recommendations to purchase additional RAM will be based on information obtained by systems monitoring and reporting, and/or the RAM requirements of particular applications and use cases Client uses or intends to use. CLIENT ACKNOWLEDGES THAT ABACUS WILL BE RELIEVED OF ANY OBLIGATION TO PROVIDE CLIENT WITH CUSTOMER SERVICE RELATED TO CLIENT’S APC ENVIRONMENT IN THE EVENT THAT CLIENT REFUSES TO PURCHASE ADDITIONAL RAM FOLLOWING A RECOMMENDATION MADE BY ABACUS TO DO SO. Client understands and agrees that due to technical reasons, once RAM has been provisioned to Client’s APC Environment, Client will not be able to remove the additional RAM from Client’s APC Environment or Client’s Abacus Private Cloud Subscription. Client further acknowledges that in order to add additional RAM to Client’s APC Environment, Abacus may need to perform maintenance to Client’s APC Environment, and Client will not have access to Client’s APC Environment during this process. Diagnosing or determining the cause of inadequate RAM 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 this diagnosis. Any such services shall be governed by a separate SOW.

8. System Storage– In any Service Order Form and/or Service Order Addendum (if any) affirmatively accepted by Client and herein, “Hard Drive Space” or “System Storage” refers to the amount of space available on each of Client’s APC Servers for the storage of Client’s system and data files. Pursuant to industry best practices, Abacus recommends that Client’s System Storage utilization within each Client’s APC Servers not exceed 90% of the allocated amount, as doing so can put Client’s APC Environment at a performance risk, including a hard shut down. Abacus will regularly monitor Client’s System Storage usage. Abacus shall notify Client when Client’s System Storage usage is 85% of Client’s allocation (through support tickets accessible in the Client Portal), at which point Client will have the opportunity to add additional System Storage to Client’s affected APC Server by contacting an Abacus representative. In the event that Client does not purchase additional System Storage and Client’s System Storage utilization reaches 90% of the allocated amount, Client authorizes Abacus to add System Storage to Client’s affected APC Server in increments being sold by Abacus at that time, and in sufficient amounts (depending on the minimum necessary size increments of System Storage that are being sold by Abacus at that time) to bring Client’s System Storage usage below 90% , and to charge Client Abacus’ then current rate for the applicable GB increments added, in order to preserve the performance of the service. Once System Storage is added to Client’s APC Environment, the monthly cost of the added System Storage will be added to Client’s MRC for the remainder of the term of Client’s Abacus Private Cloud Subscription. Client understands and agrees that due to technical reasons, once additional System Storage has been provisioned to Client’s APC Environment, Client will not be able to remove the additional System Storage from Client’s APC Environment. Client further acknowledges that in order to add additional System Storage to Client’s APC Environment, Abacus may need to perform maintenance to Client’s APC Environment, and Client will not have access to Client’s APC Environment during this process. Diagnosing or determining the cause of inadequate System Storage 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 this diagnosis. Any such services shall be governed by a separate SOW.

9. Document Storage– In any Service Order Form and/or Service Order Addendum (if any) affirmatively accepted by Client and herein, “Document Storage” refers to the amount of space available on Client’s APC Environment for the storage of data files. Pursuant to industry best practices, Abacus recommends that Client’s Document Storage utilization in Client’s APC Environment not exceed 90% of the allocated amount, as doing so can put Client’s APC Environment at a performance risk, including an inability to save additional files that would exceed available Document Storage. Abacus will regularly monitor Client’s Document Storage usage. Client will have the opportunity to add additional Document Storage to Client’s APC Environment by contacting an Abacus representative. In the event that Client does not purchase additional Document Storage and Client’s Document Storage utilization reaches 90% of the allocated amount, Client authorizes Abacus to add an additional Document Storage to Client’s APC Cloud Environment in increments being sold by Abacus at that time, and in sufficient amounts (depending on the minimum necessary size increments of Document Storage that are being sold by Abacus at that time) to bring Client’s Document Storage usage below 90%, and to charge Client Abacus’ then current rate for the applicable GB increments added, in order to preserve the performance of the service. Once Document Storage is added to Client’s APC Environment, the monthly cost of the added Document Storage will be added to Client’s MRC for the remainder of the term of Client’s Abacus Private Cloud Subscription. Client understands and agrees that due to technical reasons, once additional Document Storage has been provisioned to Client’s APC Environment, Client will not be able to remove the additional Document Storage from Client’s APC Environment. Client further acknowledges that in order to add additional Document Storage to Client’s APC Environment, Abacus may need to perform maintenance to Client’s APC Environment, and Client will not have access to Client’s APC Environment during this process. Diagnosing or determining the cause of inadequate Document Storage 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 this diagnosis. Any such services shall be governed by a separate SOW.

10. Application Storage– In any Service Order Form and/or Service Order Addendum (if any) affirmatively accepted by Client and herein, “Application Storage” refers to the amount of space available on Client’s APC Environment for the storage of application files (e.g. SQL database storage). Pursuant to industry best practices, Abacus recommends that Client’s Document Storage utilization in Client’s APC Environment not exceed 90% of the allocated amount, as doing so can put Client’s APC Environment at a performance risk, especially regarding the performance of the associated applications. Abacus will regularly monitor Client’s Application Storage usage. Client will have the opportunity to add additional Application Storage to Client’s APC Environment by contacting an Abacus representative. In the event that Client does not purchase additional Application Storage and Client’s Application Storage utilization reaches 90% of the allocated amount, Client authorizes Abacus to add an additional Application Storage to Client’s APC Environment in sufficient amounts (depending on the minimum necessary size increments of Application Storage that are being sold by Abacus at that time) to bring Client’s Application Storage usage below 90%, and to charge Client Abacus’ then current rate for the applicable GB increments added, in order to preserve the performance of the service. Once Application Storage is added to Client’s APC Environment, the monthly cost of the added the Application Storage will be added to Client’s MRC for the remainder of the term of Client’s Abacus Private Cloud Subscription. Client understands and agrees that due to technical reasons, once additional Application Storage has been provisioned to Client’s APC Environment, Client will not be able to remove the additional Application Storage from Client’s APC Environment. Client further acknowledges that in order to add additional Application Storage to Client’s APC Environment, Abacus may need to perform maintenance to Client’s APC Environment, and Client will not have access to Client’s APC Environment during this process. Diagnosing or determining the cause of inadequate Application Storage 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 this diagnosis. Any such services shall be governed by a separate SOW

11. Processor– In any Service Order Form and/or Service Order Addendum (if any) affirmatively accepted by Client for Abacus Private Cloud and herein, “Processor” and/or “CPU” refers to Client’s APC Environment’s processor cycles. Pursuant to industry best practices, Abacus recommends that Client’s CPU utilization in Client’s APC Environment not exceed 90% of the allocated resources, as doing so can put Client’s APC Environment at a performance risk. Client acknowledges Abacus cannot predict Client’s CPU usage and thus Client may need to purchase additional resources (including but not additional servers) in order for Client’s APC Environment to properly function. Abacus will regularly monitor Client’s CPU usage and may recommend that Client purchase an additional server(s). All recommendations to purchase additional servers will be based on information obtained by systems monitoring and reporting, and/or other information provided to Abacus by Client. CLIENT ACKNOWLEDGES THAT ABACUS WILL BE RELIEVED OF ANY OBLIGATION TO PROVIDE CLIENT WITH CUSTOMER SERVICE RELATED TO CLIENT’S APC ENVIRONMENT IN THE EVENT THAT CLIENT REFUSES TO PURCHASE ADDITIONAL SERVER(S) FOLLOWING A RECOMMENDATION MADE BY ABACUS TO DO SO. Client understands and agrees that due to technical reasons, once additional servers(s) have been provisioned to Client’s APC Environment, Client will not be able to remove the additional server from Client’s APC Environment. Client further acknowledges that in order to add additional server(s) to Client’s APC Environment, Abacus may need to perform maintenance to Client’s APC Environment, and Client will not have access to Client’s APC Environment during this process. The assessment or analysis of the cause of CPU related issues 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 this assessment or analysis. Any such services shall be governed by a separate SOW.

12. MS365– In any Service Order Form and/or Service Order Addendum (if any) affirmatively accepted by Client for Abacus Private Cloud and herein, “MS365” means a non-transferable license to use Microsoft 365 only during the term set forth in the Service Order and/or Service Order Addendum, and within Client’s APC Environment (contingent upon Client timely paying its MRC), and is otherwise governed by all terms and policies set forth by Microsoft applicable to MS365, and may include penalties for early termination of the MS365, which will be Client’s sole responsibility to pay. For further information on these terms, contact Microsoft directly. The particular MS365 license selected by Client shall be either an E1, E3, Exchange Online Plan 1 or a MS365 Apps for Business (formerly referred to as a MS365 “ProPlus”) license, with the particular rights and functionality for each such licenses being determined by Microsoft. ABACUS DOES NOT WARRANT THE PERFORMANCE OR FUNCTIONALITY OF MS365 OR DATA THAT RESIDES IN MICROSOFT’S CLOUD OR INFRASTRUCTURE. If purchased, this MS365 license will be deemed part of Client’s Abacus Private Cloud Subscription. Thus any suspension or termination of Client’s Abacus Private Cloud Subscription will also result in a corresponding suspension or termination of the MS365 license. ABACUS WILL SERVE AS ADMINISTRATOR OF CLIENT’S MS365 ACCOUNT. CLIENT ACKNOWLEDGES THAT IT WILL NOT RECEIVE ADMINSTRATIVE RIGHTS TO MS365. The deployment of MS365 on Client’s APC Environment shall be in the form supplied by Microsoft without modification and with all default settings pre-determined by Microsoft. Professional Services can be retained on an hourly basis to make any desired changes to the settings of MS365. Any such services shall be governed by a separated SOW. Client hereby understands that as a Certified Microsoft partner, Abacus may receive a payment from Microsoft arising from the sale of MS365.

13. 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 APC Environment.

14. 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 APC 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 APC 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 APC Environment from a device that is infected. Abacus recommends that client maintain virus and malware protection on every device that accesses Client’s APC Environment.

15. Passwords– Access to Client’s APC Environment is limited by certain password requirements. It is Client’s responsibility to ensure that its passwords to Client’s APC 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 APC 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 APC Environment.

16. Backup Systems– During the term of Client’s Abacus Private Cloud Subscription, Abacus shall perform incremental daily backups of Client’s APC 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 20 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.Client may purchase additional Backup Storage and recovery points, in the amount specified in any Service Order Form or Service Order Addendum, which includes backup recovery points objectives (RPO) beyond the standard thirty (30) days.In order to provision Backup Storage and create Client’s data protection strategy, Client must purchase Professional Services hours, which will be rendered pursuant to a separate SOW.

17. Migration of Client’s Data to/from Client’s APC Environment– Included in the Activation Fee for Abacus Private Cloud is 2 hours of Professional Service time to assist Client with the migration of Client’s data files (as opposed to e-mail files, which are discussed in Paragraph 18) to the designated Document Storage within Client’s APC Environment. All data migration to/from Client’s APC Environment beyond the initial two hours for data files 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 this additional data migration. 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 APC Environment, Client herby confirms that it has the legal right to have that data migrated to it APC 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 APC Environment absent written authorization from the party originally disputing Client’s right to the data or a court order.

18. MS365 E-mail Services– Where Client has purchased MS365 through a Service Order Form or Service Order Addendum, Abacus will perform the following tasks to set up Client’s e-mail accounts in MS365:

(1) Establish Client’s MS365 account in Client’s name.

(2) Associate the domain name provided by Client to the MS365 account. Abacus’s obligation to complete this task is contingent upon Client providing Abacus with any domain names that Client owns and intends to utilize in MS365, as it is Client’s sole responsibility to obtain the domain names Client wishes to utilize in MS365. For technical reasons, Abacus cannot complete this task if Client’s specified domain is still attached to an existing Microsoft Office 365 account that Client may have or had through a vendor other than Abacus. It shall be Client’s sole responsibility to take the necessary steps to ensure that Client’s specified domain is no longer attached to such an account.

(3) Using best efforts, add a MS365 verification Text record to the DNS zone file for each of the domains that Client intends to use in MS365. Abacus’s obligation to complete this task is contingent upon Client providing Abacus access to Client’s Domain Names System (“DNS”) provider portal.

(4) Create specific user accounts, mailboxes, e-mail addresses and distribution groups specified by Client to use in Client’s MS365 portal. Abacus’s obligation to complete this task is contingent upon Client providing Abacus an accounting of the user accounts, mailboxes, email addresses and distribution groups Client wants set up in Client’s MS365 account. To the extent Client needs assistance in compiling this information, Professional Services can be retained on an hourly basis to assist with this task. Any such services for additional data migration shall be governed by a separate SOW.

(5) Issue MS365 user account credential information to Client.

(6) Configure each Abacus Private Cloud user’s desktop profile in order to sync each user’s MS Outlook to the newly created MS365 accounts.

(7) Where applicable and using best efforts, make the DNS cutover of e-mail from Client’s then current e-mail provider to Client’s MS365 account. Abacus’s obligation to complete this task is contingent upon Client providing Abacus access to Client’s DNS provider portal.

Client acknowledges that for security reasons all of these tasks (with the exception of Task Nos. 3 and 7, which can be performed by Client or a third party upon Client executing a waiver of responsibility) must be performed by Abacus. Client further acknowledges that due to the numerous unknowns associated with completing these tasks, Abacus cannot guarantee that these tasks will be completed error free.

Where Client wishes to migrate Client’s e-mail off of MS365, Abacus’ sole support obligation shall be to release the DNS domain from being associated with MS365. Abacus shall have this obligation only when Client’s account with Abacus is current.

Where identified in a Service Order Form or Service Order Addendum, Client may purchase daily backups for Client’s MS365 mailbox, which shall be stored within an Azure blob and indexed within Abacus’ secondary data center, located within Client’s country and geographic region.

Where Client has not purchased MS365 through a Service Order Form or Service Order Addendum, the set up or maintenance of Client’s e-mail service is outside the scope of Abacus’ obligations under these Terms and Conditions. Regardless of whether or not Client has purchased MS365, the migration of Client’s historical e-mail of any kind, as well as the configuration of e-mail access on non-Abacus Private Cloud devices (such as local workstations, smartphones and tablets) or converting Client’s e-mail service to something other than MS365 within Client’s APC Environment (or otherwise) 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 e-mail migration and configuration. Any such services for e-mail migration or configuration on non- Abacus Private Cloud devices shall be governed by a separate SOW.

19. Third Party Applications and Services– Except as it relates to the installation of Microsoft software products (which can only be installed in Client’s APC Environment if such software product licenses are purchased through Abacus via Microsoft Service Provider License Agreement (SPLA) or Microsoft Cloud Solutions Provider (CSP) programs, as mandated by Microsoft’s software licensing terms), the installation or integration of third-party software or services to Client’s APC Environment or ensuring that third-party software or services used by Client functions properly in Client’s APC Environment is outside the scope of Abacus’ obligations set forth in these Terms and Conditions. Professional Services can be retained on an hourly basis to ensure that Client’s third-party software applications and services are properly installed (including working with the third-party software manufacturer to determine appropriate resources), conditioned on Client providing Abacus with the installation media, a valid license permitting the software to be installed and operated in either Windows Server 2012 r2 running Microsoft Remote Desktop Services or Windows Server 2016 running Microsoft Remote Desktop Services (depending upon which server type Client’s APC Environment has been deployed with), and sufficient documentary proof that Client is legally authorized to use this license. Where Client requests Abacus to perform any installation (including but not limited to patches or updates) related to any third-party software application, Client authorizes Abacus to click to accept the third-party software vendor’s applicable terms and conditions on behalf of Client. Client acknowledges that Abacus may be required (as mandated by certain third-party vendors) to charge Client a fee in order to install and use third-party software within Client’s Abacus Private Cloud Environment. Client hereby authorizes Abacus to add such fees to Client’s Monthly Recurring Charge, and further acknowledges that such fees may be subject to change. Client acknowledges that certain third-party software or applications may require additional resources to function within Client’s APC Environment, which must be added to Client’s Abacus Private Cloud Subscription (at an additional charge to Client) prior to the application or software being installed in Client’s APC Environment. The need for additional resources is based upon several factors including but not limited to software manufacturer system requirements, software usage forecasting, existing APC platform usage patterns and general IT best practices/recommendations. Where such software manufacturer system requirements or licensing limits the installation or use of the particular software to Windows Server 2012 R2 and Client’s APC Environment has been deployed with Windows Server 2016, Client will be assessed an additional fee to redeploy Client’s APC Environment with Windows Server 2012 R2. Any such Professional Services performed by Abacus related to third-party applications or services, shall be governed by a separate SOW. If under any circumstances Client directly or indirectly provides Abacus with the installation media for a third-party software product or service to be installed or used within Client’s APC Environment, Client hereby warrants that Client has the appropriate license(s) to install and/or use that third-party software product or service in Client’s APC Environment for all intended users. Abacus cannot guarantee that Client’s third-party software or services will properly function in Client’s APC Environment. All issues with the functionality of the third-party software or services should be directed to the particular software or service provider. Abacus reserves the right to prevent the installation of any third-party software or services on Client’s APC Environment that Abacus at its sole discretion deems may compromise the health or security of Client’s APC Environment or Abacus’ infrastructure, or that Abacus suspects is or assists in the violation of any law.

20. Customer Service– Client’s APC Environment is monitored by Abacus’ network operating center 24/7 365. Client can reach Abacus’ Abacus Private Cloud Customer Support by calling (888) 329-5833 or via e-mail at apc@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 APC Environment, data stored in Client’s APC 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 APC 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 wither 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 Private 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 APC Subscription.

21. ADVANCED SUPPORT OFFERINGS– Clients can purchase the following advanced support options to optimize their Abacus Private Cloud (“APC”) experience.

22. Service Level Agreement (SLA)– Abacus will use commercially reasonable efforts to make Client’s APC Environment “available” to Client 99.999% of the time (calculated monthly) outside of scheduled maintenance, emergency maintenance, the rebooting of Client’s APC Environment after adding or reducing resources (including but not limited to RAM, System Storage, Document Storage or CPU), connectivity issues caused by User Error, or the suspension of Client’s Abacus Private Cloud Subscription. In this context, “available” shall mean that Client’s APC Environment is accessible from an APC Compatible Device (as defined below) via Remote Desktop with a Reliable Connection (as defined below).

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 Private 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 Private Cloud Subscription pursuant to Paragraph Nos. 35 and 36, 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.

23. 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 Private 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 APC Environment may be unavailable, and thus this time shall not be considered in calculating whether Client’s APC Environment is “available” per the SLA (see Paragraph 22).

24. Client’s Data– Client will retain ownership of all data Client transfers to and stores on Client’s APC Environment. 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 APC Environment contains confidential information. Abacus will only access Client’s data when necessary to fulfill an obligation related to Client’s Abacus Private 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 APC Environment, Client herby confirms that it has the legal right to have that data migrated to it APC 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 APC 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 Private Cloud Subscription to obtain (at Client’s sole cost and expense) all of Client’s data from Client’s APC 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 APC Environment. If purchased, such services, will be governed by a separate SOW.

25. APC Compatible Devices– Successful use of Client’s APC Environment requires a device (PC, MAC, tablet or smartphone) using an operating system currently being supported by Microsoft, Apple or Android, running the latest version of Remote Desktop, and is malware and spyware free. As used herein, such a device shall be referred to as an “APC Compatible Device.” It is outside Abacus’ obligations set forth in these Terms and Conditions to supply Client with any APC 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 APC 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.

26. Reliable Connection– Successful use of Client’s APC Environment requires a properly routed internet connection that can reliably sustain a sub 100 millisecond (ms) response time between the network that Client’s APC Compatible Device is connected to and Client’s APC Environment. Where more than one of Client’s Abacus Private Cloud users are trying to connect to Client’s Abacus Private 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 APC 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 APC 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 APC Environment shall not constitute “for cause” for purposes of terminating Client’s Abacus Private Cloud Subscription. It is further recommended that 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 APC Environment from network locations outside of North America. Should Client or Client’s end users need to access Client’s APC Environment from outside of North America, to avoid delays, it is Client’s responsibility to notify APC Support at least 48 hours before such access would be required to facilitate access when traveling abroad.

27. Local Area Network– The Local Area Network (LAN) within Client’s office or other locations from which Client may try to access Client’s APC Environment affects the quality and speed of its Abacus Private 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.

28. Printing and Scanning– Although most printers and scanners are compatible with Client’s APC Environment, Abacus cannot guarantee that Client’s printers and scanners will work in Client’s APC Environment. Abacus recommends that Client use TWAIN compliant scanners and cloud ready printers and scanners. Abacus discourages the use of non-networked printers and scanners for use in Client’s APC Environment. In some instances, Client may need third party software for the printers and/or scanners to fully function properly across the remote desktop connection, which can be purchased at Client’s sole expense and there are no guarantees that such software will work. Abacus cannot guarantee that all functions (including paper bin selection) will be fully functional. Abacus Professional Services may be retained on an hourly fee basis to assist Client with issues they are having with its printer(s) and scanner(s) the from Client’s APC Environment. If purchased, such services, will be governed by a separate SOW.

29. 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 Private Cloud User to confirm an attempted log in to Client’s APC Environment by responding to a message sent to an authentication application (“Authentication App”) provided by Abacus and installed on the Abacus Private 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 Private 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 Private Cloud User will not be able to access Client’s APC Environment unless Abacus receives written confirmation from the Client’s designed Principal Point of Contact that the particular Abacus Private 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 Private Cloud User has only changed his/her phone number associated with his/her Registered Phone).

30. Email Encryption– In any Service Order Form and/or Service Order Addendum (if any) affirmatively accepted by Client and herein, “Email Encryption” means a non-transferable license to use Microsoft Email Encryption product only during the term set forth in the Service Order and/or Service Order Addendum, and within Client’s APC Environment (contingent upon Client timely paying its MRC), and is otherwise governed by all terms and policies set forth by Microsoft. For further information on these terms, contact Microsoft directly. ABACUS DOES NOT WARRANT THE PERFORMANCE OR FUNCTIONALITY OF MICROSOFT’S EMAIL ENCRYPTION PRODUCT. If purchased, this MS365 license will be deemed part of Client’s Abacus Private Cloud Subscription. Thus any suspension or termination of Client’s Abacus Private Cloud Subscription will also result in a corresponding suspension or termination of the E-mail Encryption license.

31. 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 Private Cloud Subscription. Thus any suspension or termination of Client’s Abacus Private Cloud Subscription will also result in a corresponding suspension or termination of the Sophos Endpoint Antivirus & Malware Protection license.

32. VPN– In any Service Order Form and/or Service Order Addendum (if any) affirmatively accepted by Client and herein, means a “non-transferable license to use a special configured Virtual Private Network Appliance (which shall be deployed at Client’s business location) that will create a secure AES 256 bit encryption “tunnel” via the internet into Client’s business network. Client hereby acknowledges that it will be responsible for the cost of the Virtual Private Network Appliance in the event the appliance is lost, stolen or otherwise damaged, and that the appliance must be returned upon cancellation or termination of Client’s Abacus Private Cloud Subscription Client or the VPN component of the Abacus Private Cloud Subscription. Client further acknowledges that it is Client’s responsibility to supply (at Client’s own expense) an IT professional to install and configure the Appliance to Abacus’ specifications (which may include making modifications to Client’s local network).

33. TS Scan– In any Service Order Form and/or Service Order Addendum (if any) affirmatively accepted by Client and herein, “TS Scan” refers to a scanning solution produced by TerminalWorks that can enable Client’s to use scanners attached to a local workstation to scan to Client’s APC Environment in certain instances where Client is not otherwise able to scan directly to Client’s APC Environment. The fee paid for TS Scan is a one-time fee, however, if Client has previously purchased TS Scan and needs to add users, bringing the total of users into a higher tier than originally purchased, additional fees will apply. ABACUS DOES NOT WARRANT THE PERFORMANCE OR FUNCTIONALITY OF TS SCAN.

34. TS Print– In any Service Order Form and/or Service Order Addendum (if any) affirmatively accepted by Client and herein, “TS Print” refers to a printing solution produced by TerminalWorks that enables Client’s to use printers attached to a local workstation to print from Client’s APC Environment in certain instances where Client is not otherwise able to print directly from Client’s APC Environment. The fee paid for TS Print is a one-time fee, however, if Client has previously purchased TS Print and needs to add users, bringing the total of users into a higher tier than originally purchased, additional fees will apply. ABACUS DOES NOT WARRANT THE PERFORMANCE OR FUNCTIONALITY OF TS PRINT.

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

36. Termination– Either party may terminate Client’s Abacus Private 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 Private 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 Private 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 Private Cloud Subscription (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 Private Cloud Subscription. The only time Client can terminate Client’s Abacus Private 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 49 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 APC 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 Private Cloud Subscription for cause (with respect to that alleged breach). Abacus may terminate Client’s Abacus Private 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 Private Cloud Subscription being suspended.

37. Non-Solicitation of Abacus’ Employees– During the term of Client’s Abacus Private 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.

38. Acceptable Use– Within Client’s APC Environment, Client is specifically prohibited from doing the following: using Client’s APC 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 Private 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 APC Subscription. Client warrants that it will maintain a unique user license for each distinct individual or device accessing Client’s APC Environment. Client acknowledges and agrees that any improperly licensed or unlicensed use of Client’s APC 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 APC Subscription, backdated to the earliest known violation, or the beginning of the Term of Client’s APC Subscription, whichever is earlier.

39. 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.

40. 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 APC 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.

41. 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 36, 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 36). 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.

42. 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.

43. 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 Private 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 Private Cloud will inure to the benefit of and be binding on the parties and their respective successors, heirs and permitted assigns.

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

45. 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.

46. 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 Private 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 Private Cloud will continue to be valid and enforceable.

47. 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 Private 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.

48. Integration– These Terms and Conditions and the corresponding Service Orders and Service Order Addendum (if any) affirmatively accepted by Client for Abacus Private 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.

49. 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

50. Governing Law– These Terms and Conditions and/or any corresponding Service Orders and Service Order Addendum (if any) affirmatively accepted by Client for Abacus Private 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 Private Cloud and/or Client’s Abacus Private 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 Private Cloud and/or Client’s Abacus Private 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 THIS EULA AGAINST EITHER PARTY TO THIS AGREEMENT WITHOUT THE WRITTEN CONSENT OF BOTH PARTIES.

51. 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 Private Cloud and/or Client’s Abacus Private 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.

52. 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 at www.abacusnext.com/terms. Client’s continued use of its APC Environment after the 30th day will serve as consent to the changed terms.

53. Acceptance of Microsoft Customer Agreement –By signing aService Order Form or Service Order Addendum for an APC Subscription, and as a condition of Client’s license to use its APC Environment and any Microsoft components included therein, Client must review and accept the Microsoft Customer Agreement found at https://www.microsoft.com/licensing/docs/customeragreement(the version that is applicable to Clientis herein incorporated by reference). In order for Abacus to satisfy its reporting requirements to Microsoft, as a Cloud Solution Provider (CSP), Client authorizes Abacus to provide information to Microsoft. This information includes the following personal information about the authorized representative who signed the Service Order Form or Service Order Addendum, and thereby accepted the Microsoft Customer Agreement on Client’s behalf: name, e-mail address, and phone number.

54. Data Processing Addendum– The Data Processing Addendum set forth at www.abacusnext.com/dataprocessingaddendum is expressly incorporated into these Terms and Conditions by reference.

55. AbacusNext Offered Software