POWERPM - HOSTED 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 PowerPM Subscription, which may include the use of PowerPM software and associated modules, 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 PowerPM Subscription by way of a Service Order Form executed by Client or otherwise using any products or services that comprise Client’s PowerPM Subscription, Client agrees to be bound by the terms of this EULA.
1. CLIENT’S POWERPM SUBSCRIPTION – Where Client has selected “PowerPM – Hosted” in a Service Order Form executed by Client, Client’s PowerPM Subscription shall be comprised of:
- Use of PowerPM and access to Client’s PowerPM database, that shall be hosted in an environment controlled by Abacus (which shall be located in the United States). This environment with hereinafter be referred to as the “PowerPM Hosting Environment”;
- Internet access via supported browsers to Client’s TrakTime Web database;
- Daily back-ups of Client’s PowerPM folders;
- Maintenance of a failover site at a separate location from the primary datacenter in which Client’s PowerPM database is hosted (which shall also be in the United States);
2. GRANT OF LICENSE - Abacus grants Client a non-exclusive, limited and non-transferable license to use the products and services that comprise Client’s PowerPM Subscription. This license is 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.
The license herein is limited to use the products and services that comprise Client’s PowerPM Subscription only within the PowerPM Hosting Environment. Furthermore, this license is limited to one runtime and/or repository instance. A separate subscription is required for each additional runtime and/or repository instance. Client agrees to pay a license fee for each person who uses any of the products that comprise Client’s PowerPM Subscription, and only those users whose credentials are entered into PowerPM as operators may use those products or any of the other products that comprise Client’s PowerPM Subscription. Abacus is under no obligation to grant Client additional licenses. During the term of Client’s PowerPM Subscription, Client shall be entitled to upgrades to the products that comprise Client’s PowerPM Subscription released by Abacus (if any). 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 any products or services the comprise Client’s PowerPM Subscription or any of its rights under this EULA without the express written permission of Abacus.
3. FEES AND INVOICING - 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 PowerPM Subscription is billed in advance of Abacus providing Client that month’s PowerPM 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.
4. CUSTOMER SERVICE – Client can reach Abacus’ PowerPM Customer Service by calling (603) 643-2112 or via e-mail at email@example.com Abacus’ Customer Service business hours are Monday through Friday from 5:00AM to 9:00PM Pacific and Saturday and Sunday from 9:00AM to 5:00PM (EST) (except certain holidays). Abacus’ obligation to provide Client with customer service or support is contingent upon Client timely paying that month’s MRC and keeping the account current. If Abacus determines that the reported issue is caused by an error with the PowerPM Hosting Environment or with the PowerPM application itself, (hereinafter referred to as “System Related Error”) and not caused by the Client, its computer(s), printer(s), scanners, other hardware, network, server(s), connectivity or third-party software or services (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 wither further training and/or correcting the problem with Client’s computer(s), network, server(s), connectivity or third party software or services. All such Professional Services shall be governed by a separate SOW.
5. CLIENT’S DATA - Client shall at all times retain ownership of all data generated or imported into any product or service that is included in Client’s PowerPM Subscription by Client. If Client’s PowerPM Subscription 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 PowerPM Subscription, 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 PowerPM application 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.
6. MAINTENANCE OF THE POWERPM HOSTING ENVIRONMENT – Whenever reasonably possible, Abacus will schedule down time of the PowerPM Hosting Environment for routine maintenance outside normal business hours of the US Eastern Time Zone. In the event that an unscheduled outage occurs, Abacus will make restoration of Client’s access to the PowerPM Hosting Environment (within the primary datacenter) a priority, however, if in Abacus’ sole judgment the outage may be long term, Abacus may shift services to the backup datacenter.
7. PASSWORDS – Access to PowerPM and TrakTime is limited by certain password requirements. It is Client’s responsibility to ensure that its passwords to are maintained as confidential information, this includes but is not limited to immediately informing Abacus when any of Client’s users’ access to Client’s PowerPM and/or TrakTime should be terminated or suspended. Client acknowledges that the failure to properly maintain and routinely change its passwords could jeopardize the security of Client’s data.
8. RELIABLE CONNECTION – Successful access to the PowerPM Hosted Environment requires a properly routed internet connection that is Client’s sole responsibility to obtain and pay for. As used herein, the above stated Abacus cannot control how Client’s Internet Service Provider(s) routes its internet traffic. As such, In the event of latency in Client’s internet connection to the PowerPM Hosting Environment, it shall be Client’s sole responsibility to ensure that Client’s Internet Service Provider(s) adequately routes Client’s internet connection. The fact that Client is unable to resolve the latency in Client’s internet connection to the PowerPM Hosting Environment shall not constitute “for cause” for purposes of terminating Client’s PowerPM Subscription.
9. LOCAL AREA NETWORK – The Local Area Network (LAN) within Client’s office or other locations from which Client may try to access the PowerPM Hosting Environment affects the quality and speed of the service. The quality and configuration of switches, routers, firewalls, network cabling and computers all have an effect on performance. Optimizing Client’s LAN is not part of Abacus’ obligations pursuant to this EULA. Professional Services can be retained on an hourly basis to assist with assessing and optimizing Client’s LAN. If purchased, such services, will be governed by a separate SOW.
10. TERM – Unless stated otherwise in the Service Order Form, the term of Client’s PowerPM 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 PowerPM 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 PowerPM Subscription converts to month-to-month, Client cannot terminate Client’s PowerPM Subscription without providing Abacus at least 30 days written notice of cancellation.
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 PowerPM (as well as any other ancillary services associated with that user) on a month-to-month basis, which can be cancelled from Client’s PowerPM 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 the Service, 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 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 PowerPM Subscription if Client’s account is 5 days past due. In the event that Abacus suspends Client’s PowerPM Subscription, PowerPM will convert to read only format, and Client will not have the ability to import data into those programs. If Client wishes to reinstate its PowerPM 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 PowerPM 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 PowerPM 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 PowerPM 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 PowerPM 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 PowerPM Subscription. The only time Client can terminate Client’s PowerPM 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 21 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 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 the Service for cause (with respect to the alleged breach). Abacus may terminate the Service for cause if Client fails to make its account current and pay the Re-Activation Fee within 30 days of the Services being suspended. To the extent that Client’s installation of PowerPM has not already been converted into read only mode, upon termination of Client’s PowerPM Subscription (for any reason), Client’s installation of PowerPM will convert to read only mode as of the effective date of Client’s PowerPM Subscription.
15. SERVICE OWNERS RIGHTS - Client is granted only the right to use any of the products or services that comprise Client’s PowerPM Subscription as limited in this EULA. Ownership and all rights not expressly granted are reserved by Abacus.
16. DISCLAIMER OF WARRANTY - ABACUS TRIES TO KEEP ALL OF THE PRODUCTS AND SERVICES THAT COMPRISE CLIENT’S POWERPM 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 POWERPM 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 POWERPM SUBSCRIPTION WILL ALWAYS FUNCTION WITHOUT DISRUPTIONS, DELAYS OR IMPERFECTIONS.
17. LIMITATION OF LIABILITY - WITH THE EXCEPTION OF ANY UNAUTHORIZED COPYING AND/OR DISTRIBUTION OF ANY OF THE PRODUCTS AND/OR SERVICES THAT COMPRISE CLIENT’S POWERPM SUBSCRIPTION 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 CLIENT’S POWERPM 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 POWERPM SUBSCRIPTION 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 PRODUCTS AND/SERVICES THAT COMPRISE CLIENT’S POWERPM SUBSCRIPTION BY CLIENT, CLIENT’S TOTAL AGGREGATE AND CUMULATIVE LIABILITY TO ABACUS FOR CLAIMS ARISING OUT OF CLIENT’S POWERPM SUBSCRIPTION OR THE TERMS OF THE EULA SHALL NOT EXCEED THE EARLY TERMINATION FEE (AS DEFINED IN PARAGRAPH 10). 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 POWERPM 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. FORCE MAJEURE – Neither party shall be liable for any loss resulting from a cause over which it does 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, or natural disasters, wars, or governmental restrictions.
19. 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.
20. 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.
21. 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. 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
22. GOVERNING LAW - This EULA, any corresponding Service Order or Service Order Addendum executed by Client, and/or Client’s PowerPM 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 PowerPM 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 PowerPM 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.
23. PREVAILING PARTY - In the event of any litigation arising out of or related to Client’s PowerPM Subscription, this EULA, and/or any corresponding Service Order executed by Client, 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.
24. 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 PowerPM 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 PowerPM 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/powerpmhostedeula. Client’s continued use of the Services after the 30 day will serve as consent to the changed terms.
25. DATA PROCESSING ADDENDUM - The Data Processing Addendum set forth at www.abacusnext.com/dataprocessingaddendum is expressly incorporated into this EULA by reference.