OFFICE TOOLS WORKSPACE END USER LICENSE AGREEMENT (EULA)

OfficeTools Workspace End User License Agreement For Use Within Abacus Private Cloud

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 OfficeTools Workspace software, as well as all components of the software, modules, updates, 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. GRANT OF LICENSE – Abacus grants Client a non-exclusive, limited and non-transferable license to use the Service within and only within Client’s APC Environment and subject to Client making payment for Client’s Abacus Private Cloud Subscription as required by the applicable Service Order Form(s), on the first of each month or upfront payment of the Total Contractual Value.  Separate license fees and validation codes are required for each business entity and computer where Client uses the Service. Client agrees to pay a license fee for each person in the firm who uses the Service, and only those users unique login credentials (User ID are entered into the Service as operators may use the Service.  Abacus is under no obligation to grant Client additional licenses.  During the term of Client’s License, Client shall be entitled to upgrades to the Service released by Abacus that are part of Client’s Abacus Private Cloud Subscription. Client acknowledges that if it accepts any upgrades to the Service, any license Client may have had to prior versions of the Service terminates upon the installation of the updated version of the Service.  Client agrees that it will not rent, lend, or transfer the Service or any of its rights under this EULA without the express written permission of Abacus.

2. SUPPORT - Given the rapid changes with technology, Abacus will provide technical support and updates only for the most recent version of the Service provided Client’s Abacus Private Cloud Subscription is current.  Abacus cannot guarantee how long any particular version of any service or product will remain the current version.  OfficeTools Workspace 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. 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 OfficeTools Workspace Support by calling (661) 794-2220 or via e-mail at support@officetools.com.  Abacus’ Customer Service hours for OfficeTools Workspace are Monday through Friday, 8:00 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.  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.

3. 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, 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 the Service 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. 

4. DATABASE ASSOCIATED WITH OFFICETOOLS WORKSPACE –OfficeTools Workspace requires a database application to fully function, which can be satisfied by using Microsoft SQL Express or Microsoft SQL.  Such applications must be procured by Abacus for Client’s use, and Client’s use of such product shall also be governed by the applicable Microsoft End User License for that particular product (which shall be incorporated into this EULA by reference, where applicable). In any Service Order Form and/or Service Order Addendums (if any) affirmatively accepted by Client and herein, “MSSQL EXPRESS” means a non-transferable license to use Microsoft SQL Express only during Client’s OfficeTools Workspace Subscription (contingent upon Client timely paying its MRC).  In any Service Order Form and/or Service Order Addendums (if any) affirmatively accepted by Client and herein, “MSSQL” means a non-transferable license to use Microsoft SQL only during Client’s OfficeTools Workspace Subscription (contingent upon Client timely paying its MRC).  It is agreed that with respect to MSSQL EXPRESS and MSSQL, any protection included in this EULA extend equally to Microsoft as they do to Abacus and are enforceable by Microsoft. ABACUS DOES NOT WARRANT THE PERFORMANCE OR FUNCTIONALITY OF MSSQL EXPRESS OR MSSQL. If procured on behalf of Client, any MSSQL EXPRESS or MSSQL license will be deemed part of Client’s OfficeTools Workspace Subscription.  Thus any suspension or termination of Client’s OfficeTools Workspace Subscription will also result in a corresponding suspension or termination of the applicable database license.

5. WORKSPACE PORTAL – In any Service Order Form and/or Service Order Addendums (if any) affirmatively accepted by Client and herein, “Workspace Portal” refers a non-transferable license to use (only during the term of Client’s Abacus Private Cloud Subscription and contingent upon Client timely paying its MRC) a portal that provides an online repository (stored on drive hosted by RackSpace) which enables Client to store documents, accept payments, schedule appointments, eSignature processing, and online time tracking.  Client acknowledges that it is responsible for complying with all relevant privacy laws when storing data in the Workspace Portal.

6. WORKSPACE INTEGRATION LINK– In any Service Order Form and/or Service Order Addendums (if any) affirmatively accepted by Client and herein, “Workspace Integration Link” refers a non-transferable license to use (only during the term of Client’s Abacus Private Cloud Subscription and contingent upon Client timely paying its MRC) an integration link between OfficeTools Workspace and the following specific third-party software that enables certain select data to sync between OfficeTools Workspace and the third party software: QuickBooks (2007 and newer);  QuickBooks Premier Accountant and Enterprise Editions (2014 and newer); MS Outlook (2010 and newer); Intuit Lacerte (2008 and newer); and, Intuit Canada Profile(2011 and newer). Client acknowledges that not all fields or data contained within OfficeTools Workspace or the third party will sync with the other program.  Client further acknowledges that Abacus is not responsible for the functionality of any third-party software.

7. SERVICE OWNERS RIGHTS – Client is granted only the right to use the Service as limited in this EULA. Ownership and all rights not expressly granted are reserved by Abacus.

8. 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.

9. LIMITATION OF LIABILITY – WITH THE EXCEPTION OF ANY UNAUTHORIZED COPYING AND/OR DISTRIBUTION OF THE SERVICE 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 SERVICE 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.

10. SEVERABILITY – If any provision of this EULA is held to be invalid or unenforceable under the circumstances, such provision’s application in any other circumstances and the remaining provisions of this EULA shall not be affected thereby.

11. 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.

12. NO SHRINK WRAP LICENSES.  Abacus and Client agree that no so-called “shrink wrap” or “click wrap” terms shall apply to or change the OfficeTools Workspace EULA or the terms and conditions governing Client’s OfficeTools Workspace Subscription.  As such, any “shrink wrap” or “click wrap” license or terms shall contained in the installer, patches and/or upgrades of OfficeTools Workspace will be of no force or effect.  The version of the EULA set forth at www.abacusnext.com/officetoolsapceula at the time Client installs OfficeTools Workspace, any patches or upgrades shall become the binding terms and conditions governing Client’s use of OfficeTools Workspace (and any applicable modules) and Client’s OfficeTools Workspace Subscription. 

13. UPDATES/CHANGES TO THE SERVICE 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 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 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 data, Abacus will notify Client by e-mail of such changes, and a new EULA document will be posted at www.abacusnext.com/officetoolsapceula.  Client’s continued use of the Service after the 30 day will serve as consent to the changed terms.