HOTDOCS END USER LICENSE AGREEMENT (EULA)
This End User License Agreement (“EULA”) sets forth the scope of the license granted to Client by Abacus Data Systems, Inc. (“Abacus”) to use the services comprising Client’s HotDocs 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. By purchasing a HotDocs Subscription by way of a Service Order Form executed by Client or otherwise using the any products or services that comprise Client’s HotDocs Subscription, Client agrees to be bound by the terms of this EULA.
1. HOTDOCS SOLUTIONS – There are multiple 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 Developer” refers to a HotDocs software solution to be installed and operated solely on a desktop computer and to be used: (i) for authoring templates; (ii) uploading templates to other appropriate HotDocs Solutions to make templates available to individuals in Client’s organization (not third parties) with HotDocs User licenses; and, (iii) assembling templates locally on the designated workstation. Each individual using HotDocs Developer must have a unique license to use the solution. A separate HotDocs Publisher License is required to publish templates to third parties.
“HotDocs Server” refers to a software application used to host HotDocs templates on a server and to make those HotDocs templates available for assembly on the designated server by a user that has a unique HotDocs User license and access to the designated server. HotDocs Server does not come with any tools to author HotDocs templates.
“HotDocs Hub” refers to an add-on to HotDocs Server that presents users with a browser interface to perform management tasks and to assemble templates.
HotDocs Hub Cloud (Multi Tenanted) - refers to a multi tenanted software application hosted in Microsoft Azure (location) that presents users with a browser interface to perform management tasks and assemble templates on the designated tenancy by a user that has a unique HotDocs User license and access to the designated tenancy. HotDocs Hub does not come with any tools to author HotDocs templates.
HotDocs Hub Cloud (Dedicated Instance) - refers to a software application hosted in Microsoft Azure (location) on a dedicated server that presents users with a browser interface to perform management tasks and assemble templates on the designated instance by a user that has a unique HotDocs User license and access to the designated instance. HotDocs Hub does not come with any tools to author HotDocs templates.
2. HOTDOCS SUBSCRIPTION – The HotDocs Solutions and corresponding users identified on a Service Order Form or Service Order Addendum comprise Client’s HotDocs Subscription.
3. GRANT OF LICENSE– For HotDocs Subscriptions, Abacus grants Client a non-exclusive, limited and non-transferable license to use the products and services that comprise Client’s HotDocs Subscription subject to Client making payment of the Monthly Recurring Charge (“MRC”), as set forth in the corresponding Service Order Form executed by the Client, on the first of each month or upfront payment of the Total Contractual Value. Unless stated specifically in this EULA, this license does not allow for the use of any HotDocs Solution within a Remote Desktop Services session, Terminal Services Session, in a cloud (private or multitenant) environment (not provided by Abacus or its affiliates), or at multiple physical locations connected to a single database. A separate subscription is required for each additional runtime and/or repository instance. Separate license fees and validation codes are required for each business entity and computer where Client uses any of the products that comprise Client’s HotDocs 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 Subscription, and only those users with unique login credentials (User ID) are entered into the applicable HotDocs Solution as operators may use those products or any of the other products that comprise Client’s HotDocs Subscription. Abacus is under no obligation to grant Client additional licenses. During the term of Client’s HotDocs Subscription, Client shall be entitled to upgrades to the products that comprise Client’s HotDocs Subscription released by Abacus or its affiliates. Any license granted to Client by way of Client’s HotDocs Subscription shall be revoked automatically when Client’s HotDocs Subscription is suspended (as discussed in Paragraph 12 below) and/or where Client’s HotDocs Subscription is terminated (as described in Paragraph13 below). Client acknowledges that if it accepts any upgrades to those services or products, any license Client may have had to prior versions of that product or service terminates upon the installation of the updated version. Client agrees that it will not rent, lend, or transfer Client’s copy of a HotDocs Solution or any of its rights under this EULA without the express written permission of Abacus.
4. FEES AND INVOICING– For HotDocs Subscriptions, Client agrees to pay Abacus the Total Contractual Value (upfront) or the Monthly Recurring Charges (“MRC”) and 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. Client’s MRC for Client’s HotDocs Subscription is billed in advance of Abacus providing Client that month’s HotDocs related services. 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 this EULA that are greater than 15 days past due shall bear interest at the rate of one and one-half percent per month.
5. MINIMUM SYSTEM REQUIREMENTS– The minimum system requirements to run the current version of HotDocs Solutions are set forth at https://www.abacusnext.com/software/hotdocssystemreqs.
6. UPDATES AND PATCHES – During the Term of Client’s HotDocs 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 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 Subscription.
7. 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 Subscription provided Client’s HotDocs 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. Client can reach HotDocs Support by calling (800) 828-8328 or via e-mail at email@example.com. Abacus’ Customer Service hours are Monday through Friday, 9:00 a.m. to 8:00 p.m. (EST) (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 applicable HotDocs Solution by Client. If Client’s license to use HotDocs Hub is suspended or terminated (as discussed below), Client shall have an opportunity (at its sole expense) to extract its data from HotDocs Hub in a format that could be used in another platform or application. 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.
9. TERM – Unless stated otherwise in the Service Order Form, the term of Client’s HotDocs 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. Unless Client provides Abacus with written notification of Client’s desire to have the subscription terminated upon expiration of the original term at least 30 days before expiration of that term, Client’s HotDocs Subscription will convert to month-to-month following the initial term, subject to an increase in price to Abacus’ then existing charges for month-to-month licenses. Once the Client’s HotDocs Subscription converts to month-to-month, Client cannot terminate Client’s HotDocs Subscription without providing Abacus at least 30 days written notice of cancellation.
10. 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 use a particular HotDocs Solution and any other ancillary services associated with that user (where applicable) on a month-to-month basis for that particular user, which can be cancelled from Client’s HotDocs Subscription withhold having to pay an Early Termination Fee (as discussed in Paragraph 14 below) 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.
11. NON-SOLICITATION OF ABACUS’ EMPLOYEES – During the term of Client’s license to use a Hotdocs Solution (or related products), 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 (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.
12. SUSPENSION– Abacus may, at its sole discretion, suspend Client’s HotDocs Subscription if Client’s account is 5 days past due. In the event that Abacus suspends Client’s HotDocs Subscription, Abacus has the right to render Client’s installation of the particular HotDocs Solution(s) inoperable. If Client wishes to reinstate its HotDocs Subscription, Client must make its account current and pay a re-activation fee of $250 (“Re-Activation Fee”).
13. TERMINATION– Either party may terminate Client’s HotDocs 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 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 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 HotDocs 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 Subscription. The only time Client can terminate Client’s HotDocs Subscription for cause is if Abacus fails to cure a material breach of this EULA within 30 days of Abacus receiving written notice of that breach (in the manner set forth in Paragraph 19 below). ). In order for such notice to be deemed sufficient, the notice must expressly identify the particular provision(s) of this EULA 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 Subscription for cause (with respect to the alleged breach). Abacus may terminate Client’s HotDocs Subscription for cause if Client fails to make its account current and pay the Re-Activation Fee within 30 days of Client’s HotDocs 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 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 Subscription.
14. SERVICE OWNERS RIGHTS– Client is granted only the right to use any of the products or services that comprise Client’s HotDocs Subscription as limited in this EULA. Ownership and all rights not expressly granted are reserved by Abacus and/or its subsidiaries.
15. DISCLAIMER OF WARRANTY– ACKNOWLEDGES THAT ITS USE OF ANY PRODUCTS OR SERVICES COMPRISING CLIENT’s HOTDOCS SUBSCRIPTION IS AT ITS OWN RISK. ABACUS IS PROVIDING THE PRODUCTS AND SERVICES THAT COMPRISE CLIENT’S HOTDOCS 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 SUBSCRIPTION WILL ALWAYS FUNCTION WITHOUT DISRUPTIONS, DELAYS OR IMPERFECTIONS.
16. 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 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 SUBSCRIPTION, 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 CLIENT’S HOTDOCS 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 SUBSCRIPTION BY CLIENT, CLIENT’S TOTAL AGGREGATE AND CUMULATIVE LIABILITY TO ABACUS FOR CLAIMS ARISING OUT OF CLIENT’S HOTDOCS SUBSCRIPTION OR THE TERMS OF THE EULA SHALL NOT EXCEED THE EARLY TERMINATION FEE (AS DEFINED IN PARAGRAPH 14). 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 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.
17. 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.
18. INTEGRATION– This EULA 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.
19. 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
20. GOVERNING LAW – This EULA, any corresponding Service Order or Service Order Addendum executed by Client, and/or Client’s HotDocs 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 EULA and/or any corresponding Service Order executed by Client, the terms set forth in this EULA, Client’s HotDocs 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 Subscription and/or any corresponding Service Order executed by Client, or the terms set forth in this EULA , 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.
21. PREVAILING PARTY – In the event of any litigation arising out of or related to Client’s HotDocs Subscription, this EULA, any corresponding Service Order executed by Client and/or Client’s HotDocs 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.
22. UPDATES/CHANGES TO SERVICES AND EULA – Due to changes in technology and the marketplace, Abacus may make modifications to the products or services that comprise Client’s HotDocs 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 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. Abacus reserves the right to discontinue offering a HotDocs Subscription at the conclusion of Client’s then current subscription term. 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.abacusnext.com/hotdocseula. Client’s continued use of the Services after the 30 day will serve as consent to the changed terms. This EULA shall solely govern Client’s HotDocs 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.
23. DATA PROCESSING ADDENDUM – The Data Processing Addendum set forth at www.abacusnext.com/dataprocessingaddendum is expressly incorporated into this EULA by reference.