HOTDOCS PUBLISHER STANDARD MASTER SERVICES AGREEMENT (MSA)
This HotDocs Publisher Master Services Agreement (“MSA”) sets forth the scope of the license granted to Client (as identified in the applicable Service Order Form) by Abacus Data Systems, Inc. (“Abacus”) to use the services comprising Client’s HotDocs Publisher Subscription, which may include the use of HotDocs software, as well as all components of the software, updates, and related materials including but not limited to manuals, on-line information, and marketing materials; where purchased, and subject to the limitations described herein and in the applicable Service Order or Service Order Addendum, Client is also granted a license to publish HotDocs Templates in accordance with the terms of this MSA.
By purchasing a HotDocs Publisher Subscription by way of a Service Order Form executed by Client, or otherwise using the any products or services that comprise Client’s HotDocs Publisher Subscription, Client agrees to be bound by the terms of this MSA.
- HOTDOCS SOLUTIONS – There are multiple versions of HotDocs software and related components of that software (“HotDocs Solutions”) that are available to Client. As used herein and in any Service Order Form or Service Order Addendum, the following terms set forth in this paragraph define those solutions:
- HotDocs Advance (On-Premise) – refers to a bundle that contains HotDocs Advance deployed on Client’s local environment (or deployed in Client’s separate hosted environment that is not provided by Abacus) linked to a locally installed HotDocs Author tool.
- HotDocs Advance (Azure) – refers to a bundle that contains HotDocs Advance hosted in Microsoft Azure linked to a locally installed HotDocs Author tool.
- HotDocs Classic – refers to any HotDocs products purchased from Abacus or Abacus’ predecessor that are not HotDocs Advance. HotDocs Classic may include, but is not limited to, HotDocs User, HotDocs Developer, HotDocs Hub, HotDocs Server, HotDocs Market, Desktop HotDocs, Document Services, Cloud Services, Template Portal, HotDocs Player, and any other HotDocs add-on features. HotDocs will provide best endeavors to support the most current versions of all HotDocs Classic products with the exception of Template Portal and HotDocs Player (which are not supported). Products falling under the HotDocs Classic definition are seen as mature and complete, and as such there are no plans to further market, develop or enhance any HotDocs Classic products. This Solution does not include any form of software front-end for HotDocs Server.
- HotDocs Publisher – refers to a license in favor of Client making HotDocs Templates with Client’s Content available for use by individuals that are not Users (“Subscribers”) during the Term of Client’s HotDocs Publisher Subscription, as specified in the applicable Service Order Form or Service Order Addendum. Unless a HotDocs Publisher license is purchased in a Service Order Form or Service Order Addendum, Client is not licensed to make Templates available to anyone other than a named licensed individual within Client’s organization (“User”). This license does not permit the wider publication of Templates beyond the scope of the license defined within the applicable Service Order Form. This Publisher license may also include Client Assembling or otherwise making available HotDocs Templates as part of an automated/batch processing solution where the interaction between HotDocs Solutions and Client’s internal systems is instigated or mostly controlled by an automated process instead of being triggered by a User within HotDocs software. This allows Client to operate API link between Client’s HotDocs Solutions and Client’s internal business systems.
- HotDocs Templates – HotDocs Templates (a “Template”) is a document file that contains HotDocs markup from which a tailored document can be created (“Assembled” or “Assemblies”). The creation and use of HotDocs Templates and the Assemblies by Users is included with Client’s subscription to use HotDocs Solutions.
- HotDocs Components – Using HotDocs may also include additional features, including but not limited to the use of files that determine how to structure the Content (a “Component File”) as well as a method of collecting and inputting information to Assemble a document (an “Interview”). Use of Component Files and Interviews are included within Client’s HotDocs Publisher Subscription.
- HOTDOCS PUBLISHER SUBSCRIPTION – The HotDocs Solutions, number of Users licensed to use HotDocs solutions, and the HotDocs Publisher license identified on a Service Order Form or Service Order Addendum comprise Client’s HotDocs Publisher Subscription. Except where Client purchases HotDocs Advance in Azure, Client warrants that it shall procure, operate, and maintain at its own cost and risk the operating platform necessary to deploy HotDocs Solutions, meet the HotDocs System Requirements, and adopt good industry practices to protect against unauthorized access to HotDocs Solutions.
- GRANT OF LICENSE – For HotDocs Publisher Subscriptions, Abacus grants Client a non-exclusive, limited and non-transferable license to use the products and services that comprise Client’s HotDocs Publisher Subscription, and to publish Templates in accordance with the scope of Client’s HotDocs Publisher license, subject to Client meeting its Fees and Invoicing requirements as stated below. A separate license is required for each additional runtime and/or repository instance. Separate license fees and validation codes are required for each business entity and User where Client uses any of the products that comprise Client’s HotDocs Publisher Subscription. Client agrees to pay a license fee for each unique person in the business who uses any of the products that comprise Client’s HotDocs Publisher Subscription, as well as pay the applicable annual fees or royalties stated in any applicable Service Order Form or Service Order Addendum, and only Users with unique login credentials (“User ID”) are entered into the applicable HotDocs Solution as operators. Aside from Subscribers using Interviews and Templates that are made available by a licensed HotDocs Publisher, only Users may use HotDocs Solutions or any components of the software Abacus is under no obligation to grant Client additional licenses. Where a unique code allowing Client to publish templates (a “Publisher Key”) is provided as part of Client’s HotDocs Publisher Subscription, that Publisher Key shall remain the property of Abacus, Client shall not duplicate or save copies of the Publisher Key, and must return the Publisher Key to Abacus promptly upon termination of this MSA. During the term of Client’s HotDocs Publisher Subscription, Client shall be entitled to upgrades to the products that comprise Client’s HotDocs Publisher Subscription released by Abacus or its affiliates. Unless stated otherwise, upgrading Client’s HotDocs Publisher Subscription from HotDocs Classic to HotDocs Advance shall not be considered an upgrade included with Client’s HotDocs Publisher Subscription, but instead shall require the purchase of HotDocs Advance as a separate product. Any license granted to Client by way of Client’s HotDocs Publisher Subscription shall be revoked automatically when Client’s HotDocs Publisher Subscription is suspended (as discussed in Paragraph 12 below) and/or where Client’s HotDocs Publisher Subscription is terminated (as described in Paragraph 13 below).
Client acknowledges that by purchasing a Subscription which includes licensing or support for any HotDocs solutions, or by accepting any upgrades to prior HotDocs services or products, any license Client may have had to prior versions of that product or service (including but not limited to any perpetual license) terminates upon the date of execution of the applicable Service Order Form, or the date of the installation of an updated HotDocs version, whichever is earlier.
Client agrees that it will not rent, lend, or transfer Client’s copy of a HotDocs Solution or any of its rights under this MSA without the express written permission of Abacus. Client further agrees that it shall not disassemble, decompile, or reverse engineer HotDocs Software or its Components, sublicense, distribute, or enter into any time share agreement related to HotDocs, nor shall it rent, lend copy, distribute, or otherwise make HotDocs Solutions available for any third-party use except licensed Users or Subscribers, or circumvent or alter how HotDocs Solutions are delivered in accordance with this MSA. Where Client makes HotDocs or any component thereof available for use by Subscribers, even within a software front-end for HotDocs Server developed solely by Client, Client shall prominently feature a marketing statement and logo provided by Abacus, with trademark designation, which states “Powered by HotDocs TM” and “HotDocs is a registered trademark of Abacus Data Systems, Inc.”
- FEES AND INVOICING – For HotDocs Publisher Subscriptions, unless stated otherwise in the Service Order Form or Service Order Addendum, Client agrees to pay Abacus annually in advance, within thirty (30) days of Client’s receipt of invoice, for the HotDocs Solutions, and the HotDocs Publisher fees and royalties as set forth in the applicable Service Order Form, together with any additional fees listed, or taxes payable by Client that are required to be collected by Abacus pursuant to any applicable law. Additionally, where specified, Client agrees to pay Abacus within thirty (30) days of Client’s receipt of invoice, for any true-up based on additional usage beyond the amounts specified in the applicable Service Order Form or Service Order Addendum. 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 a different currency. To the extent Client wishes to be billed in a different currency, at the time of signature, Abacus will take the 30-day average of the conversion from US Dollars to the selected currency, and charge that rate for the duration of Client’s Initial Term. Client’s fees are billed in advance of Abacus providing Client the HotDocs related services. Where Client elects to pay Abacus Monthly Expenses instead of Annual Expenses (as specified on the applicable Service Order Form or Service Order Addendum) Client authorizes Abacus to automatically bill the Client’s credit card or process an Automated Clearing House transaction each month for the balance due or each year. 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 this EULA that are greater than 15 days past due shall bear interest at the rate of one and one-half percent per month.
- MINIMUM SYSTEM REQUIREMENTS – The minimum system requirements to run the current version of HotDocs Solutions are set forth at www.abacusnext.com/software/hotdocssystemreqs.
- UPDATES AND PATCHES – During the Term of Client’s HotDocs Publisher Subscription, Abacus will notify Client within HotDocs and/or via e-mail of updates and patches (where Client is eligible). It is ultimately Client’s responsibility to ensure that these updates and patches are installed. In part, the updates and patches to are designed to thwart the continual threat of security breaches (including data mining agents and other malware) which if not prevented would make the Client more vulnerable to having its data compromised. Client hereby acknowledges that it is not best practices to use a version of any of the Solutions, services or products that comprise Client’s HotDocs Publisher Subscription that is not the most current and up to date version offered by Abacus, and that doing so, Client would be putting the integrity of the system and Client’s data at heightened risk of corruption, hard shutdown, and security breaches that could extend beyond the data accessed by the products or services that comprise Client’s HotDocs Publisher Subscription.
- SUPPORT– Given the rapid changes with technology, Abacus will provide technical support and updates (which may be provided by an Abacus subsidiary) only for the most recent version of the products or services that comprise Client’s HotDocs Publisher Subscription provided Client’s HotDocs Publisher Subscription is current. Abacus cannot guarantee how long any particular version of any service or product will remain the current version. HotDocs requires connecting to the Internet from time to time for registration, updates and use analysis. Such connectivity is outside the scope of Abacus’ obligations, and thus it is Client’s responsibility to obtain and pay for the necessary connectivity. Up to three (3) authorized support contracts can reach HotDocs Support on Client’s behalf by calling (800) 828-8328 or via e-mail at firstname.lastname@example.org. Abacus’ Customer Service hours are Monday through Friday, 9:00 a.m. to 8:00 p.m. (EST) (excepting certain holidays). Subscribers are not entitled to contact HotDocs Support or receive technical assistance related to HotDocs Solutions. It shall be Client’s sole and exclusive responsibility to assist with the use of HotDocs by Subscribers. Abacus will make its best efforts to respond to all calls or e-mails to Customer Service by the next business day and make efforts to diagnose the cause of Client’s reported issue. If Abacus determines that the reported issue is caused by a software malfunction (hereinafter referred to as “System Related Error”) and not caused by the Client, its computer(s), network, server(s), connectivity or third party software (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. All such Professional Services shall be governed by a separate Statement of Work (“SOW”) executed by Client.
Regarding any custom integration or development to HotDocs Solutions, whether performed by Abacus, Client, or a third-party, including but not limited to integration or development of a front-end solution for Client to make HotDocs Templates available to its Users or Subscribers as permitted within this MSA, Abacus expressly disclaims all warranties regarding the performance of such integration or development. Where Abacus provides services to Client, related to migration, conversion, template development, integration, or customization (“Professional Services”), those services shall be rendered pursuant to a separate Statement of Work (“SOW”), governed by the Professional Services Terms and Conditions, at an hourly rate for the time and materials required to scope and perform such deliverables. All work falling within the definition of Professional Services, whether performed by Abacus or not, shall be outside the scope of the Support included with Client’s HotDocs Publisher Subscription.
- ADVANCED SUPPORT OFFERINGS – Clients can purchase the following advanced support options to optimize their HotDocs experience.
Premium Support – Where purchased in a Service Order Form or Service Order Addendum, Premium Support shall include unlimited maintenance, support, and updates for HotDocs software and any HotDocs Templates created by Abacus. In addition to receiving access for up to ten (10) designated Users to use a priority level support queue, unlimited access to an online training database, and 50% discounted fees to attend all AbacusNext events and webinars, Premium Support shall also include a dedicated Technical Account Manager (“TAM”), which shall serve as Client’s primary point of contact. Where Client has made Premium Support a part of Client’s HotDocs Publisher Subscription, Abacus will make its best efforts to respond to support inquiries in accordance with the following table:
||Initial Response Objective
|Severity Level 1 – Mission critical HotDocs Solution(s) unavailable, risk of loss or corruption of data, business operations severely disrupted.
||30 Minutes Response Time, 24/7.
|Severity Level 2 – Mission critical HotDocs Solution(s) available, but critical function of application is unavailable, business operations disrupted.
||2 Hours Response Time, 24/7.
|Severity Level 3 – Mission critical HotDocs Solution(s) available, but non-critical function of application is unavailable, business operations not immediately interrupted.
||4 Regular Business Hours Response Time.
Technical Account Manager (“TAM”) – Where purchased in a Service Order Form or Service Order Addendum, or as included within Client’s purchase of Premium Support, Client’s TAM includes a dedicated resource available for technical account management or technical support escalations, with scheduled weekly or bi-weekly case scrub/project management calls, and one (1) annual onsite visit to Client’s principal place of business to discuss strategic planning, project or product roadmaps, with travel expenses paid by Client. In addition, Client’s TAM will assist in scheduling application upgrades, and providing step-by-step resolution guides or screen recordings for Client’s technical support tickets upon request.
- INTELLECTUAL PROPERTY – Client shall at all times retain intellectual property rights to the data that is generated by or imported into the applicable HotDocs Solution by Client (“Content”), unless Client grants those rights to its Subscribers. Client shall have sole responsibility over Content generated by use of its Templates. All other intellectual property or ownership rights not expressly granted to Client shall remain the sole and exclusive property of Abacus. Client acknowledges that during the term of Client’s license, Abacus (or its affiliates) may need to view Client’s data to assist Client with training or other customer service issues. Client further acknowledges that in performing those services, Abacus (or its affiliates) may need to take screen grabs or video of Client’s screen(s). In such an event, Abacus warrants that it will not access Client’s data without Client’s permission, that it will only access that data which is reasonably necessary to complete the specified task(s), and that it will only take screen grabs or video of Client’s screens when necessary to complete the specified task(s). To the extent Client gives Abacus access to Client’s data, Abacus acknowledges that Client’s data shall be treated as confidential information and will not disclose the data or its contents to third parties without the Client’s express written consent. Notwithstanding the foregoing, nothing in this MSA shall preclude Abacus from marketing and soliciting Abacus products and services directly to Client’s Subscribers during the Term of Client’s HotDocs Publisher Subscription or thereafter.
- TERM – Unless stated otherwise in the Service Order Form, the term of Client’s HotDocs Publisher Subscription commences on the date when Abacus processes Client’s initial payment and shall continue for the minimum term set forth in the corresponding Service Order Form executed by Client (“Initial Term”). Absent either party providing the other with written notification (as required pursuant to Paragraph 21 below) at least 60 days prior to the expiration of the Initial Term or any subsequent Renewal Term, Client’s HotDocs Publisher Subscription will automatically renew for a twelve (12) month term (“Renewal Term”) subject to a price increase which shall not exceed the then current list price, billed in the same frequency as the prior term.
- NON-SOLICITATION OF ABACUS’ EMPLOYEES – During the term of Client’s license to use a HotDocs Solution (or related products), and for twelve (12) months thereafter, Client agrees that it will not directly or indirectly recruit, solicit or otherwise induce or attempt to induce any employee of Abacus (or its affiliates) that had direct contact with Client while that employee was acting in the course and scope of the employee’s duties with Abacus to terminate his or her employment with Abacus. Client acknowledges that if it breached this Paragraph and the relevant employee left his or her employment with Abacus, it would be difficult to determine actual damages. Based on what the Parties presently know, they agree that an amount equal to 100% of the relevant employee’s Abacus annual salary is a reasonable estimate of the damages that would accrue if a breach of this provision occurred in the future and the relevant employee terminated his or her employment with Abacus as a result. Client agrees that the amount of liquidated damages is fair and reasonable and would not act as a penalty in such an instance. This Paragraph shall not preclude Client from hiring an Abacus employee where that employee independently responded to a job posting made available to the general public.
- SUSPENSION – Abacus may, at its sole discretion, suspend Client’s HotDocs Publisher Subscription if Client’s account is 15 days past due. In the event that Abacus suspends Client’s HotDocs Publisher Subscription, Abacus has the right to render Client’s installation of the particular HotDocs Solution(s) inoperable. If Client wishes to reinstate its HotDocs Publisher Subscription, Client must make its account current and pay a re-activation fee of $250 (“Re-Activation Fee”).
- TERMINATION – Either party may terminate Client’s HotDocs Publisher 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 HotDocs Publisher 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 HotDocs Publisher 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 unpaid minimum royalties for Client’s Publisher license for the remainder of the Term (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 HotDocs Publisher Subscription (including the cancellation of a user, unless that user is a Flex User) 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 HotDocs Publisher Subscription, plus any unpaid minimum royalties for Client’s Publisher license for the remainder of the Term. The only time Client can terminate Client’s HotDocs Publisher Subscription for cause is if Abacus fails to cure a material breach of this MSA within 30 days of Abacus receiving written notice of that breach (in the manner set forth in Paragraph 20 below). In order for such notice to be deemed sufficient, the notice must expressly identify the particular provision(s) of this MSA 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 (or its affiliates) to access Client’s computer system 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 HotDocs Publisher Subscription for cause (with respect to the alleged breach). Abacus may terminate Client’s HotDocs Publisher Subscription for cause if Client fails to make its account current and pay the Re-Activation Fee within 30 days of Client’s HotDocs Publisher Subscription being suspended. To the extent that Client’s installation of any HotDocs Solution has not already been rendered inoperable, upon termination of Client’s HotDocs Publisher Subscription (for any reason), Client’s installation of the applicable HotDocs Solution(s) will rendered inoperable as of the effective termination date of Client’s HotDocs Publisher Subscription.
- SERVICE OWNERS RIGHTS – Client is granted only the right to use any of the products or services that comprise Client’s HotDocs Publisher Subscription as limited in this MSA. Ownership and all rights not expressly granted are reserved by Abacus and/or its subsidiaries.
- RIGHT TO AUDIT AND QUARTERLY COMPLIANCE REPORTING – With respect to the licensing limitations, including any specification on the number of Users, Subscribers, Assemblies, Templates, or any other components of HotDocs Solutions, as described in any Service Order Form, Service Order Addendum, or this MSA, during the term of Client’s HotDocs Publisher Subscription Abacus shall have the right to audit Client’s HotDocs Publisher Subscription and any use thereof, including the right to be provided access to any system where Client hosts or uses HotDocs Solutions, stores or uses HotDocs Templates, without advanced notice. To ensure Client’s compliance with the scope of its license to use and publish HotDocs, and to determine royalties, during each business quarter, starting with the commencement of the term of Client’s HotDocs Publisher Subscription and until termination, Client shall provide Abacus an accurate up-to-date list of Users that are using any of the HotDocs Solutions or Components that comprise Client’s HotDocs Publisher Subscription, including the number of Subscribers accessing published Templates, and the number of Templates that Client has Assembled using HotDocs (“Quarterly Compliance Report”). Client must provide its Quarterly Compliance report to PUBLISHERS@ABACUSNEXT.COM. To the extent Client’s use of Client’s HotDocs Publisher Subscription exceeds the parameters described in any Service Order Form, Service Order Addendum, or this MSA, or is otherwise determined by Abacus to exceed the scope of the User license granted to Client as part of Client’s HotDocs Publisher Subscription, Client agrees that additional charges and fees shall apply.
- DISCLAIMER OF WARRANTY – ABACUS TRIES TO KEEP ALL OF THE PRODUCTS AND SERVICES THAT COMPRISE CLIENT’S HOTDOCS PUBLISHER SUBSCRIPTION OPERATING BUG-FREE, AND SAFE, BUT CLIENT ACKNOWLEDGES THAT ITS USE OF THOSE PRODUCTS AND/OR SERVICES IS AT ITS OWN RISK. ABACUS IS PROVIDING THE PRODUCTS AND SERVICES THAT COMPRISE CLIENT’S HOTDOCS PUBLISHER SUBSCRIPTION AS IS WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. ABACUS DOES NOT GUARANTEE THAT THE PRODUCTS AND/OR SERVICES THAT COMPRISE CLIENT’S HOTDOCS PUBLISHER SUBSCRIPTION WILL ALWAYS FUNCTION WITHOUT DISRUPTIONS, DELAYS OR IMPERFECTIONS.
- LIMITATION OF LIABILITY – WITH THE EXCEPTION OF ANY UNAUTHORIZED USE, COPYING AND/OR DISTRIBUTION BY CLIENT OF A HOTDOCS SOLUTIONS AND/OR ANY OF THE PRODUCTS AND/OR SERVICES THAT COMPRISE CLIENT’S HOTDOCS PUBLISHER SUBSCRIPTION, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, LOSS OF BUSINESS OPPORTUNITY, BUSINESS INTERRUPTION, LOSS OF GOOD WILL, DAMAGE TO BUSINESS REPUTATION, LOSS OF BUSINESS INFORMATION, WORK STOPPAGE, LOSS OF DATA, COMPUTER FAILURE OR MALFUNCTION, OR OTHER SUCH PECUNIARY LOSS), WHETHER UNDER A THEORY OF CONTRACT, WARRANTY, TORT, OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL ABACUS’ TOTAL AGGREGATE AND CUMULATIVE LIABILITY TO CLIENT FOR ANY AND ALL CLAIMS OF ANY KIND ARISING AS A RESULT OF OR RELATED TO CLIENT’S HOTDOCS PUBLISHER SUBSCRIPTION, THE TERMS OF THE MSA, OR TO ANY ACT OR OMISSION OF ABACUS, EXCEED THE AMOUNT OF SUBSCRIPTION FEES ACTUALLY PAID (IF ANY) BY CLIENT FOR CLIENT’S HOTDOCS PUBLISHER SUBSCRIPTION GIVING RISE TO THE CLAIM IN THE THREE MONTHS PRECEDING THE CLAIM. LIKEWISE, WITH THE EXCEPTION OF CLAIMS ARISING OUT OF THE UNAUTHORIZED USE COPY OR DISTRIBUTION OF A HOTDOCS SOLUTON AND/OR THE PRODUCTS AND/SERVICES THAT COMPRISE CLIENT’S HOTDOCS PUBLISHER SUBSCRIPTION BY CLIENT, CLIENT’S TOTAL AGGREGATE AND CUMULATIVE LIABILITY TO ABACUS FOR CLAIMS ARISING OUT OF CLIENT’S HOTDOCS PUBLISHER SUBSCRIPTION OR THE TERMS OF THE MSA SHALL NOT EXCEED THE EARLY TERMINATION FEE (AS DEFINED IN PARAGRAPH 13). THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT THE POTENTIAL LIABILITY OF THE PARTIES ARISING FROM THIS AGREEMENT. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN THIS PARAGRAPH ARE INTEGRAL TO THE AMOUNT OF FEES CHARGED IN CONNECTION WITH MAKING CLIENT’S HOTDOCS PUBLISHER SUBSCRIPTION AVAILABLE TO CLIENT AND THAT, WERE ABACUS TO ASSUME ANY FURTHER LIABILITY OTHER THAN SET FORTH HEREIN, SUCH FEES WOULD OF NECESSITY BE SET SUBSTANTIALLY HIGHER.
- SEVERABILITY – If any provision of this MSA is held to be invalid or unenforceable under the circumstances, such provisions application in any other circumstances and the remaining provisions of this MSA shall not be affected thereby.
- INTEGRATION – This MSA and the corresponding Service Order Form(s) executed by Client (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.
- NOTICE – All notices to Client under this Agreement will be deemed given when delivered via e-mail to the address set forth in the Service Order Form. All notices to Abacus under this Agreement will be deemed given when delivered via certified mail to:
Abacus Data Systems, Inc.
4850 Eastgate Mall
San Diego, CA 92121
- GOVERNING LAW – This MSA, any corresponding Service Order or Service Order Addendum executed by Client, and/or Client’s HotDocs Publisher Subscription, 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 related to the products and services covered by this MSA and/or any corresponding Service Order executed by Client, the terms set forth in this MSA, Client’s HotDocs Publisher Subscription or to any act or omission of Abacus, whether in contract, tort or otherwise. Neither party will bring a legal action arising out of or related to Client’s HotDocs Publisher Subscription and/or any corresponding Service Order executed by Client, or the terms set forth in this MSA, or to any act or omission of Abacus, whether in contract, tort or otherwise, 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.
- PREVAILING PARTY – In the event of any litigation arising out of or related to Client’s HotDocs Publisher Subscription, this MSA, any corresponding Service Order executed by Client and/or Client’s HotDocs Publisher 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.
- UPDATES/CHANGES TO SERVICES AND MSA– Due to changes in technology and the marketplace, Abacus may make modifications to the products or services that comprise Client’s HotDocs Publisher Subscription, or particular Components of such product or service (including but not limited to discontinuing a Component) from time to time and will use commercially reasonable efforts to notify Client of any material modifications. Any such modification shall not be deemed a System Related Error. Client agrees that Abacus will not be liable to Client for any such modifications. Abacus reserves the right to discontinue offering a HotDocs Publisher Subscription at the conclusion of Client’s then current subscription term. This MSA, which shall only be modified in a duly executed written agreement signed by the Parties’ authorized representatives, shall solely govern Client’s HotDocs Publisher Subscription and/or use of any HotDocs Solutions, and any “shrink wrap” or “click wrap” license or terms included within a HotDocs Solution shall be of no force or effect.
- DATA PROCESSING ADDENDUM – The Data Processing Addendum set forth at www.abacusnext.com/dataprocessingaddendumis expressly incorporated into this MSA by reference.
- 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 relates to (1) any breach of any representation or warranty of Client contained in this MSA, and (2) any breach or violation of any covenant or other obligation or duty of Client under this EULA or under applicable law.
Abacus shall fully indemnify, hold harmless and defend (collectively “indemnify” and “indemnification”) Client 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 relates to a claim that the services provided by Abacus pursuant to this MSA infringe on the intellectual property rights of a third-party so long as: (1) Client immediately notifies Abacus when it learns of any suspected infringement against Abacus’ Intellectual Property rights or that any allegation of Intellectual Property infringement or related claim has been made against Abacus (a “Claim” for the purposes of this section); (2) Client assists Abacus as reasonably required in its defense or prosecution of such Claim subject to Abacus’ direction and control; and (3) Client makes no admission or offer of settlement related to the Claim.
- ASSIGNMENT – Neither party may assign the rights and obligations arising out of this MSA and/or corresponding Service Orders and Service Order Addendums (if any) affirmatively accepted by Client for any HotDocs Solution, 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 this MSA and/or corresponding Service Orders and Service Order Addendums (if any) affirmatively accepted by Client for any HotDocs Solution will inure to the benefit of and be binding on the parties and their respective successors, heirs and permitted assigns.