1. Terms – These External Interview Terms and Conditions (“Terms”) govern YOUR use of the External Interview. The External Interview is a service provided by Abacus Data Systems, Inc. and affiliates (“ABACUSNEXT”) for ABACUSNEXT customers (“CUSTOMER”) that use the HotDocs software application. By using the External Interview, YOU (“YOU”, “YOUR” and/or “USER”) agree to be bound by these terms. ABACUSNEXT and USER are herein individually referred to as Party and collectively referred to as the “Parties”.
IF YOU DO NOT AGREE WITH THESE TERMS DO NOT SUBMIT INFORMATION THROUGH THE LINK THROUGH WHICH THE TERMS APPEAR OR OTHERWISE USE THE EXTERNAL LINK.
2. External Interviews – This External Interview service is provided by ABACUSNEXT on behalf of ABACUSNEXT CUSTOMERS. Pursuant to a software subscription to use the HotDocs software application, ABACUSNEXT CUSTOMERS have the ability to create their own External Interview made available online to the public. The intended use of an External Interview is to facilitate the submission of data from external users to the ABACUSNEXT CUSTOMER. ABACUSNEXT has no knowledge of the content or nature of the information found in the link. Likewise, ABACUSNEXT does not have any control over the data once it is received by the ABACUSNEXT CUSTOMER. Data entered into an External Interview, will be stored on databases hosted on Microsoft Azure on a subscription managed by ABACUSNEXT. The location of the applicable database hosted on Microsoft Azure depends upon the location of the ABACUSNEXT CUSTOMER, but would ultimately reside in either the United States or Ireland. YOUR data will be made available to the ABACUSNEXT CUSTOMER who provided YOU the link to the External Interview. While data is stored on or transmitted to and from services managed by ABACUSNEXT it is encrypted.
3. Intellectual Property – ABACUSNEXT owns all rights, title and interest, including all related Intellectual Property Rights, in and to all ABACUSNEXT products and services, and any suggestions, ideas, enhancement or development requests, feedback, or recommendations provided by USER relating to the products and services. The ABACUSNEXT name and logos, as well as the product names and logos associated with all ABACUSNEXT products and services are trademarks of ABACUSNEXT. USER warrants that it owns the necessary legal rights to enter data into the External Interview, and grants to ABACUSNEXT the necessary licenses and rights to process such data in connection with the External Interview.
4. Acceptable & Fair Use Policy – By using the External Interview or otherwise using ABACUSNEXT products and services or by accepting these Terms, USER warrants the following: (i) USER shall not use ABACUSNEXT products for any illegal purpose; (ii) USER shall not use ABACUSNEXT products or services in a manner that infringes on the intellectual property rights of a third party; (iii) USER shall not use ABACUSNEXT products and services in a way that circumvents any licensing requirement; (iv) USER shall not license, sublicense, sell, resell, use as a service bureau, transfer, assign, distribute, or otherwise use or commercially exploit ABACUSNEXT products or services for a third party’s benefit unless specifically authorized by ABACUSNEXT pursuant to a mutually executed written agreement; (v); USER has the legal right as a data controller to provide and enter information into an External Interview; (vi) USER shall not disassemble, decompile, reverse engineer, copy, reproduce, modify, or create any derivative work of any ABACUSNEXT products or services; (vii) USER shall not resell or otherwise charge third parties for the use of any ABACUSNEXT product or services; and (viii) USER shall promptly provide notice to ABACUSNEXT of any violation of this Acceptable & Fair Use Policy or any other violation by USER of these Terms.
5. Disclaimer of Warranty – ABACUSNEXT TRIES TO KEEP THE EXTERNAL INTERVIEW OPERATING BUG-FREE, AND SAFE, BUT USER ACKNOWLEDGES THAT ITS USE OF THE EXTERNAL INTERVIEW IS AT ITS OWN RISK. ABACUSNEXT IS PROVIDING THE EXTERNAL INTERVIEW 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. ABACUSNEXT DOES NOT GUARANTEE THAT THE EXTERNAL INTERVIEW WILL ALWAYS FUNCTION WITHOUT DISRUPTIONS, DELAYS OR IMPERFECTIONS. ABACUSNEXT FURTHER EXPRESSLY DISCLAIMS ANY WARRANTY THAT THE EXTERNAL INTERVIEW WILL FUNCTION WHEN INTEGRATED OR COMBINED WITH THIRD-PARTY SOFTARE PRODUCTS, INCLUDING BUT NOT LIMITED TO MICROSOFT PRODUCTS.
6. Limitation of Liability – WITH THE EXCEPTION OF ANY UNAUTHORIZED COPYING AND/OR DISTRIBUTION OF ANY ABACUSNEXT’S INTELLECTUAL PROPERTY BY END USER, 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 ABACUSNEXT’S TOTAL AGGREGATE AND CUMULATIVE LIABILITY TO USER FOR ANY AND ALL CLAIMS OF ANY KIND ARISING AS A RESULT OF OR RELATED TO USER’S USE OF THE EXTERNAL INTERVIEW, THESE TERMS, OR TO ANY ACT OR OMISSION OF ABACUSNEXT, EXCEED $100. THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT THE POTENTIAL LIABILITY OF THE PARTIES ARISING FROM THESE TERMS. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN THIS PARAGRAPH ARE INTEGRAL TO THE ABACUSNEXT MAKING THE EXTERNAL INTERVIEW AVAILABLE TO USER AND THAT, WERE ABACUSNEXT TO ASSUME ANY FURTHER LIABILITY OTHER THAN SET FORTH HEREIN, CUSTOMER AND/OR USER’S WOULD OF NECESSITY BE SET SUBSTANTIALLY HIGHER. THIS LIMITATION OF LIABILITY APPLIES EQUALLY TO CLAIMS RELATED TO THIRD PARTY SOFTWARE AND ITS OWNERS AND PROVIDERS.
7. Indemnification – USER shall fully indemnify, hold harmless and defend ABACUSNEXT and its directors, officers, employees, agents, stock holders, subsidiaries and affiliates (collectively “ABACUSNEXT 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 USER contained in these Terms, (2) any breach or violation of any covenant or other obligation or duty of USER under these Terms or under applicable law, and (3) any violations of any applicable privacy laws caused by errors or omissions of USER. ABACUSNEXT shall fully indemnify, hold harmless and defend USER and its directors, officers, employees, agents, stock holders, subsidiaries and affiliates (collectively “USER Indemnified Parties”) from and against all claims demands, actions, suits, damages, liabilities, losses, settlements, judgments, costs and expenses (including but not limited to reasonable attorney’s fees and costs), involving a claim that ABACUSNEXT Software products infringe on the intellectual property rights of a third party, except where USER’s conduct is the cause of the alleged infringement.
8. Individual Capacity – WHERE PERMITTED UNDER THE APPLICABLE LAW, USER AND ABACUSNEXT AGREE THAT EACH PARTY MAY ONLY BRING CLAIMS AGAINST THE OTHER PARTY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. NO ARBITER OR JUDGE MAY CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS UNDER THESE TERMS AGAINST EITHER PARTY TO THIS AGREEMENT WITHOUT THE WRITTEN CONSENT OF BOTH PARTIES.
9. Governing Law – The use of the External Interview, these Terms, and any claim arising out of or in connection thereto (including any non-contractual disputes, acts or omissions, or claims in contract, tort, or otherwise), shall be construed under the laws of the State of California regardless of conflict of law provisions. USER and ABACUSNEXT irrevocably consent to the exclusive venue of the state or federal courts in San Diego County, California. Neither party will bring any legal action more than two years after the cause of action arose.
10. Prevailing Party – In the event of any litigation arising out of or related to USER’s use of the External Interview, these Terms, the prevailing party shall be entitled to recover from the non-prevailing party all costs and expenses associated with such proceedings, including reasonable attorney’s fees. For purposes of this provision, if a matter is filed in any venue other than the venue specified in the Governing Law section, and the matter is dismissed for improper venue, the party that did not file the action shall be deemed the prevailing party in that action.
11. Notices – All notices to ABACUSNEXT under this Agreement will be deemed given when delivered via certified mail to:
Abacus Data Systems, Inc.
4850 Eastgate Mall
San Diego, CA 92121
12. Assignment – USER shall not directly or indirectly assign, transfer, convey, pledge, encumber or otherwise dispose of any rights or obligations under these Terms without the prior written consent of Abacus, which consent will not be unreasonably withheld. Any assignment made without ABACUSNEXT’s consent is void and ineffective.
13. Severability – If any provision of these Terms is held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
14. Integration – These Terms, set forth the entire agreement relating to the subject matter hereof and supersede all prior agreements, discussions and understandings between them, whether oral or written, relating to the subject matter hereof.
15. Data Processing Addendum – To the extent that ABACUSNEXT is considered to process personal data in connection with making the External Interview function available to its CUSTOMERS, the Data Processing Addendum set forth at Abacusnext.com/dataprocessingaddendum is expressly incorporated into these Terms by reference.