ABACUS END USER LICENSE AGREEMENT (“EULA”) FOR USE IN ABACUS PRIVATE CLOUD (“APC”)
This End User License Agreement (“EULA”) sets forth the scope of the license granted to Client by Abacus Data Systems, Inc. (“Abacus”) to use Abacus software, which includes but is not limited to AbacusLaw, AbacusLaw Gold, Practice Area Solutions (“PALS”), Forms, Abacus Court Rules, Abacus Mobile, Abacus Payment Exchange, as well as all components of the software, updates, forms, court rules, and related materials including but not limited to manuals, on-line information, and marketing materials, all of which are collectively referred to as the “Service”. By purchasing the Service by way of a Service Order Form executed by Client or otherwise using the Service, Client agrees to be bound by the terms of this EULA.
1. ABACUSLAW – In any Service Order Form and/or Service Order Addendums (if any) accepted in writing by Client and herein, “AbacusLaw” refers to a non-exclusive, limited and non-transferable license to use the selected edition (Standard or Gold) of AbacusLaw practice management software within and only within Client’s Abacus Private Cloud Environment and subject to Client making timely payment for Client’s APC Subscription Client will use the Service on an enterprise wide basis. During the term of Client’s APC Subscription, Client shall be entitled to upgrades to AbacusLaw released by Abacus that are part of Client’s APC Subscription. Client acknowledges that if it accepts any upgrades to AbacusLaw, any license Client may have had to prior versions of AbacusLaw terminates upon the installation of the updated version of AbacusLaw. Client agrees that it will not rent, lend, or transfer Abacus or any of its rights under this Agreement without the express written permission of Abacus. Ownership and all rights not expressly granted are reserved by Abacus. The migration of pre-existing data to AbacusLaw is outside of Abacus’ obligations set forth in these Terms and Conditions. Professional Services can be retained on an hourly basis to perform such a migration (where possible). Any such services shall be governed by a separate SOW executed by Client.
2. ABACUS COURT RULES - In any Service Order Form and/or Service Order Addendums (if any) accepted in writing by Client and herein, “Abacus Court Rules” or “ACR” refers to a license (during Client’s APC Subscription) to use a selected set or sets of preconfigured calendaring work flows designed to expedite the calendaring in AbacusLaw of common court and procedural events for selected jurisdictions and subject matters. Client acknowledges that when using ACR, it is best practices to cross-reference all applicable rules and laws to ensure the accuracy of a calendar entry. Any ACR rule sets purchased by Client shall be deemed part of Client’s APC Subscription.
3. FORMS - In any Service Order Form and/or Service Order Addendums (if any) accepted in writing by Client and herein, “Forms” refers a license (during Client’s APC Subscription) to use select preconfigured court documents (for select jurisdictions) designed to auto-populate with data stored in Client’s AbacusLaw database.
4. FLEX USER - In any Service Order Form and/or Service Order Addendums (if any) affirmatively accepted by Client and herein, “Flex User” means license to access Client’s APC Environment and/or use AbacusLaw or Amicus Attorney (where applicable) on a month-to-month basis for that particular user, which can be cancelled from Client’s APC Subscription withhold having to pay an Early Termination Fee (as discussed in Paragraph 32 of the Abacus Private Cloud Terms and Conditions) so long as Client provides Abacus with an executed downgrade form 30 days prior to the effective date of the cancellation of the Flex User.
5. ABACUS MOBILE - In any Service Order Form and/or Service Order Addendums (if any) accepted in writing by Client and herein, refers to a license (during the term of Client’s APC Subscription) to access real time AbacusLaw data that can be viewed through an authorized internet connected browser, configured to display file types that are accessible in Client’s APC Subscription. Client acknowledges that in order to view specific file types a corresponding third party application may be required. Client further acknowledges that providing any such application is beyond the scope of Abacus’ obligations related to Client’s APC Subscription.
6. ABACUSLAW DATABASE ENCRYPTION - In any Service Order Form and/or Service Order Addendums (if any) affirmatively accepted by Client and herein, “AbacusLaw Database Encryption” refers to a module that provides at rest encryption (256 Bit AES) to the database tables that contain Client’s data that has been inputted into Client’s AbacusLaw installation. Client must be using AbacusLaw Version 23.22 or higher for this module to function. In order to open an encrypted database table (which may be necessary to restore any part of Client’s AbacusLaw database) a password is required. This password is to be created by Client and Client acknowledges that Abacus has no obligation to maintain a record of such password.
7. SUPPORT FOR SERVICE – Given the rapid changes with technology, Abacus will provide technical support and updates to the Service only for the most recent version of the Service provided Client’s subscription for support and updates is current. Abacus cannot guarantee how long any particular version of the Service will remain the current version. The Service requires connecting to the Internet from time to time for Service 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. Whenever Client permits Abacus to connect to Client’s system for remote support Client will have already made a current backup of its system and all data and Client shall remain solely responsible for it. Client can reach AbacusLaw Support by calling (800) 488-3334 or via e-mail at firstname.lastname@example.org. Abacus’ Customer Service hours are Monday through Friday, 6:00 a.m. to 5:00 p.m. (PST) (excepting certain holidays). 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.
8. CLIENT’S DATA – Client shall at all times retain ownership of all data generated or imported into the Service by Client. If Client’s license to use the Service is suspended or terminated (as discussed below), Client shall have an opportunity (at its sole expense) to extract its data from the Service in a format that could be used in another platform or application. Client acknowledges that during the term of Client’s license, Abacus 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 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. The migration of pre-existing data to AbacusLaw is outside of Abacus’ obligations set forth in this EULA. Professional Services can be retained on an hourly basis to perform such a migration (where possible). Any such services shall be governed by a separate SOW executed by Client.
9. ABACUS PAYMENT EXCHANGE – Within AbacusLaw, Client shall have the option to use Abacus Payment Exchange (“APX”) which is a payment processing service provided by Vantage Card Services, Inc. (but billed through Abacus) that is made accessible in AbacusLaw, and is otherwise governed by all terms and polices set forth by Vantage Card Services, Inc. ABACUS DOES NOT WARRANT THE PERFORMANCE OR FUNCTIONALITY OF APX.
10. SERVICE OWNERS RIGHTS – Client is granted only the right to use the Services as limited in this EULA. Ownership and all rights not expressly granted are reserved by Abacus.
11. DISCLAIMER OF WARRANTY – ABACUS TRIES TO KEEP THE SERVICE OPERATING BUG-FREE, AND SAFE, BUT CLIENT ACKNOWLEDGES THAT ITS USE OF THE SERVICE IS AT ITS OWN RISK. ABACUS IS PROVIDING THE SERVICE 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 SERVICE WILL ALWAYS FUNCTION WITHOUT DISRUPTIONS, DELAYS OR IMPERFECTIONS.
12. LIMITATION OF LIABILITY – WITH THE EXCEPTION OF ANY UNAUTHORIZED COPYING AND/OR DISTRIBUTION OF THE SERVICES BY CLIENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, LOSS OF BUSINESS OPPORTUNITY, BUSINESS INTERRUPTION, LOSS OF GOOD WILL, DAMAGE TO BUSINESS REPUTATION, LOSS OF BUSINESS INFORMATION, WORK STOPPAGE, LOSS OF DATA, COMPUTER FAILURE OR MALFUNCTION, OR OTHER SUCH PECUNIARY LOSS), WHETHER UNDER A THEORY OF CONTRACT, WARRANTY, TORT, OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL ABACUS’ TOTAL AGGREGATE AND CUMULATIVE LIABILITY TO CLIENT FOR ANY AND ALL CLAIMS OF ANY KIND ARISING AS A RESULT OF OR RELATED TO THE SERVICE COVERED BY THIS EULA, THE TERMS OF THE EULA, 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 THREE MONTHS PRECEDING THE CLAIM. LIKEWISE, WITH THE EXCEPTION OF CLAIMS ARISING OUT OF THE UNAUTHORIZED COPY OR DISTRIBUTION OF THE SERVICES BY CLIENT, CLIENT’S TOTAL AGGREGATE AND CUMULATIVE LIABILITY TO ABACUS FOR CLAIMS ARISING OUT OF THE SERVICES COVERED BY THIS EULA OR THE TERMS OF THE EULA SHALL NOT EXCEED THE EARLY TERMINATION FEE ASSOCIATED WITH CLIENT’S APC SUBSCRIPTION. 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 SECTION 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.
13. SEVERABILITY – If any provision of this EULA is held to be invalid or unenforceable under the circumstances, such provisions application in any other circumstances and the remaining provisions of this EULA shall not be affected thereby.
14. INTEGRATION – This EULA and the corresponding Service Order Form(s) executed by Client (which incorporates the Terms and Conditions governing Client’s Abacus Private Cloud Subscription) collectively 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.
15. UPDATES/CHANGES TO SERVICES AND EULA - Due to changes in technology and the marketplace, Abacus may make modifications to the Service or particular components of the Service (including but not limited to discontinuing a component) from time to time and will use commercially reasonable efforts to notify Customer of any material modifications. Any such modification shall not be deemed a System Related Error. Client agrees that Abacus will not be liable to Client for any such modifications to the Service. Abacus reserves the right to discontinue offering the Service at the conclusion of Client’s then current subscription term for such Service. Likewise, Abacus reserves the right to routinely update, amend or change the EULA. At least 30 days prior to the effective date, Abacus will notify client by e-mail of such changes, and a new EULA document will be posted at www.abacuslaw.com/apceula. Client’s continued use of the Services after the 30 day will serve as consent to the changed terms.