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 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’ 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, 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 (which is unsupported). 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.
- HotDocs Publisher – refers to a license and corresponding publishing key which permits Client to make HotDocs templates available for use by individuals other than named Users purchased as part of Client’s HotDocs Subscription. Unless a HotDocs Publisher license is purchased in a Service Order Form or Service Order Addendum, Client is not licensed to make templates to any individual other than Users within Client’s organization.
- HotDocs Templates – HotDocs Templates (a “template”) is a document file that contains HotDocs markup from which a tailored document can be created. The use and creation of templates is included with Client’s subscription to use HotDocs Solutions.
- HotDocs Sample Templates – Any Templates provided by Abacus (including the content therein) are intended as examples, a starting point for users to build their own legal documents. Due to changes in the law, variance between jurisdictions, and other considerations, Abacus disclaims any warranty, express or implied, that any particular template is complete, accurate, current, legally sufficient, or applicable in any particular circumstance. These templates should not be relied on as legal advice nor legal practice and use of the templates does not create an attorney-client relationship.
- HotDocs Player – Where made available to an end-user by download by an authorized HotDocs Publisher, HotDocs Player is a limited-scope license to use HotDocs Solutions. Use of HotDocs Player does not require an AbacusNext subscription, or payment of fees to Abacus, and does not include Support for HotDocs. Otherwise, any use of HotDocs Player is subject to the remaining terms of this EULA. HotDocs Player users are able to utilize HotDocs Templates, where provided to them by an authorized HotDocs Publisher, but may not develop, manipulate, distribute, or reverse engineer any templates or any part of HotDocs Solutions, including any aspect of HotDocs software.
- HotDocs Virtual Interviews (also referred to as “Client Interviews”) – Included as part of Client’s HotDocs Subscription when Client purchases HotDocs Advance (Azure), Virtual Interviews includes the ability for Client to create and make available personalized HotDocs Interviews, accessible via a compatible web browser, for external use by individuals without a User license. Virtual Interviews are only permitted for external use, Client is prohibited from making Virtual Interviews available for use by individuals within Client’s organization without a User license. Included with Client’s HotDocs Subscription is a license to use the number of Virtual Interviews available per month, as purchased by Client in a Service Order Form or Service Order Addendum. Any amount of Virtual Interviews that are unused in a given month, for any reason, shall not roll over to any subsequent month. In order to use Virtual Interviews, Client must have a license to use HotDocs Advance (Azure), updated to version 1.18 or later.
2. HOTDOCS SUBSCRIPTION – The HotDocs Solutions and number of Users licensed to use HotDocs solutions 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 the Annual Recurring Charge (“ARC”), as set forth in the corresponding Service Order Form executed by the Client, on an annual basis, or upfront payment of the Total Contractual Value (“TCV”). 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 User 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. Only individuals within Client’s business entity that are registered operators with User IDs (“Users”) 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. Migrating Client’s HotDocs Subscription from HotDocs Classic to HotDocs Advance shall not be considered an upgrade included with Client’s HotDocs 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 Subscription shall be revoked automatically when Client’s HotDocs Subscription is suspended (as discussed in Paragraph 13 below) and/or where Client’s HotDocs Subscription is terminated (as described in Paragraph 14 below). To ensure Client’s compliance with the scope of its license to use HotDocs, during each consecutive twelve month period starting with the commencement of the term of Client’s HotDocs Subscription, upon Abacus’ written request Client shall provide Abacus a accurate an up-to-date list of individuals that are using any of the HotDocs solutions that comprise Client’s HotDocs Subscription.
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 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”) or the Annual Recurring Charge (“ARC” = 12 x 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. 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 for Client’s HotDocs Subscription is billed in advance of Abacus providing Client that month’s HotDocs related services. Likewise, Client’s ARC for Client’s HotDocs subscription is billed in advance of Abacus providing Client the first month of 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 or each year for annual recurring charges. 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 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 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 by 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. 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). 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. 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 Subscription, Abacus will make its best efforts to respond to support inquiries in accordance with the following table:
Severity Level 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 can provide step-by-step resolution guides or screen recordings on certain types of technical support tickets in order to elevate Client’s self-service ability and result in more successful use of platform features.
- 24/7 Support – Where purchased in a Service Order Form or Service Order Addendum 24/7 Support shall mean 24/7 access for Client’s Users to a support queue including the ability to report technical incidents via chat, email, portal, and a dedicated phone line. Pricing will be determined in accordance with Client’s number of Users (based on multiples of 10), and Client acknowledges and understands that Client’s MRC for 24/7 Support will increase by $100 each time Client’s number of Users increases in multiples of 10 to the next tier (i.e. 10 Users, 20 Users, 30 Users, and so on, until Client reaches 100+ Users which requires custom pricing).
9. 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.
10. 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 (“Initial Term”). Absent either party providing the other with written notification (as required pursuant to Paragraph 26 below) at least 60 days prior to the expiration of the Initial Term or any subsequent Renewal Term, Client’s HotDocs Subscription will automatically renew for a twelve (12) month term (“Renewal Term”) subject to a price increase.
11. 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 without 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.
12. 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.
13. 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”).
14. 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 20 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.
15. 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.
16. DISCLAIMER OF WARRANTY–ABACUS TRIES TO KEEP ALL OF THE PRODUCTS AND SERVICES THAT COMPRISE CLIENT’S HOTDOCS 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 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.
17. 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 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, 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.
18. SEVERABILITY– If any provision of this EULA 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.
19. 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.
20. 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 mailto:
Abacus Data Systems, Inc.
4850 Eastgate Mall
San Diego, CA 92121
21. 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.
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.
22. 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.
23. 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 postedat 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.
24. DATA PROCESSING ADDENDUM– The Data Processing Addendum set forth at www.abacusnext.com/dataprocessingaddendum is expressly incorporated into this EULA by reference.
25. 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 this EULA, and (2) any breach or violation of any covenant or other obligation or duty of Client under this EULA or under applicable law.
26. ASSIGNMENT– Neither party may assign the rights and obligations arising out of this EULA 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 EULA 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.
27. 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.
28. FAIR USE POLICY – Abacus reserves the right to formulate and disseminate from time to time a Fair Use Policy which stipulates requirements and restrictions imposed by Abacus in the interests of operating the Service in a manner which is efficient, viable, sustainable and attractive for end users. The Fair Use Policy shall be consistent with the terms of this EULA. Client is expressly prohibited from allowing more than one individual to use or access a single User license, or allow a named individual to use or access a System Account (i.e. an API or Service Account) to operate HotDocs Solutions as an unlicensed user. A material or persistent breach of the Fair Use Policy by Client is a material breach of this EULA.
29. RIGHT TO AUDIT – With respect to the licensing limitations, restrictions, and Fair Use Policy, as described in this EULA or any Service Order Form or Service Order Addendum, during the term of Client’s HotDocs Subscription Abacus shall have the right to audit Client’s HotDocs 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 the extent Client’s use of Client’s HotDocs Subscription exceeds the parameters described in any Service Order Form, Service Order Addendum, or this EULA, or is otherwise determined by Abacus to exceed the scope of the User license granted to Client as part of Client’s HotDocs Subscription, Client agrees that additional charges and fees shall apply.