The following Terms and Conditions govern all ProServ provided by AbacusNext International Limited (“Abacus”) or its subsidiaries identified in any Service Order or Statement of Work executed by Client related to products offered by Abacus (including but not limited to HotDocs).
1. Deliverables – The project deliverables for ProServ will be identified on an ‘As-Need’ basis, recorded on a Statement of Work (“SOW”), a Service Order Form, or a Technical Design Document (“TDD”). Preliminary estimates for hours and deliverables may also be embodied in a Professional Services Estimate (“PSE”), which is a non-contractual document designed to provide an initial scoping of the level of effort and hours required to complete a project. Where a PSE is generated prior to a project, the PSE must be approved by Client prior to SOW or TDD work commencing. To the extent an SOW or TDD is used, such SOW or TDD shall be incorporated by reference into these Terms and Conditions, and governed by the same terms as set forth below. Upon completion of the work set forth in any SOW, Abacus will deliver a document via e-mail entitled “End of Project,” which will signify that Abacus has completed the work set forth in the SOW and that no further work will be performed by Abacus without Client executing a new SOW. Abacus’ Professional Service Department’s hours are Monday through Friday, 9:00am to 5:00pm (GMT) (excepting certain holidays). Abacus will make its best efforts to respond to all calls or e-mails to ProServ by the next business day.
2. Confidential Information – To the extent that the completion of the ProServ set forth in an executed SOW requires Abacus to access Client’s data, Abacus acknowledges that Client’s data shall be treated as confidential information. Client hereby authorizes Abacus to access Client’s data only as reasonably necessary to complete the ProServ set forth in the particular SOW. To the extent that Client delivers a copy of Client’s data to Abacus, Abacus will only maintain that copy for purposes of completing a particular project, after which point Abacus will destroy all copies of Client’s data that it had in its possession. Abacus further warrants that it will maintain the confidential nature of Client's data and will not disclose the data or its contents to third parties without the Client’s express written consent.
3. Migration, Importation or Manipulation – Where an SOW or any ProServ ordered by way of a Service Order Form or Service Order Addendum calls for manipulation or transfer of data from one software database into another or otherwise splitting data from a database, Client acknowledges and assumes the inherent risks, including the possibility of technological limitations, errors and omissions, or other factors which may result in data transfers being over-inclusive, under-inclusive, or incomplete. To the extent Client provides Abacus with data for the purposes of migrating that data to Client’s APC Environment, AbacusLaw, Amicus Attorney, Results, Office Tools Workspace or other applications, request Abacus to perform a database split, otherwise manipulate data, or copy a database, Client herby confirms that it has the legal right to provide that data and expressly authorizes Abacus to perform such tasks. Client further acknowledges that if a dispute arises over whether Client has the legal right to possess or control the data prior to Abacus performing the migration, split, other manipulation, or copying, Abacus will not perform such task(s) absent written authorization from the party originally disputing Client’s right to the data or a court order. Client acknowledges that to facilitate the process of handling Client’s data for any purposes identified in a SOW, Client’s data may be stored in Microsoft Azure (which Client may be charged for).
4. Modification/Customization – To the extent Abacus performs for Client any modifications, special features and/or customization of APC, AbacusLaw, Amicus Attorney, Results, Office Tools Workspace, and/or HotDocs (including but not limited to custom form design, custom screens, custom PAL modules, custom rules, custom dashboards, extra database features, custom database structures, custom review pans, custom report queries, and custom user indexes), Abacus shall retain all intellectual property rights to such modifications, special features and/or customization. Client will only receive a non-exclusive, limited and non-transferable license to use the modifications, special features and customizations during the term of Client’s current Subscription, and contingent upon Client timely paying all fees due for such Subscription. Abacus shall provide Client with a 30-Day Warranty on any modification, special feature or customization following the delivery of the modification, special feature or customization to Client. After the 30-Day Warranty has expired, ProServ can be retained on an hourly basis to assist with this assessment or analysis. Any such services shall be governed by a separate SOW or an executed Managed IT Maintenance Plan.
5. Training – To the extent Client uses Professional Service hours for training, unless expressly stated in an SOW or in a Service Order Form, all training will be provided remotely (i.e. not an onsite visit to Client’s location). Client acknowledges that if Client fails to attend a scheduled training session without providing Abacus with notice at least 24 hours prior to the scheduled training session, Abacus will charge Client the equivalent of one hour of ProServ time. If such an event occurs and Client does not have any Professional Service hours in its account, Client will be invoiced for the charges, or where applicable Client’s credit card or ACH on file with Abacus will be charged £200.
6. Payment for Services – Abacus will charge Client for the ProServ contemplated in an executed SOW at a rate of £200 per hour, rounded up to the nearest hour. Client shall have an option to purchase Professional Service hours by the block at a discounted price based on the rate set forth in a Service Order or SOW executed by Client. The amount of Pre-Paid blocks of ProServ hours purchased by Client shall not be deemed as estimate of the hours necessary to complete any ProServ task or project. Pre-Paid blocks of ProServ shall only be applied for the same type of ProServ work as specified in the Service Order Form, Service Order Addendum, or other document where those hours were purchased(including but not limited to hours purchased for training, customization, or data migration, those hours will be limited to the purpose specified at purchase). Abacus will not start work on those ProServ until it has received written approval from Client for the amount of estimated allocated hours to complete the ProServ, and either payment for the total amount of hours approved or approval to execute against the Pre-Paid block of Professional Service hours which Client may have on the books. Optionally, Client may request Abacus to bill for services rendered against the approved SOW, in which case, Abacus shall issue a progress billing invoice on a monthly basis, which shall be due upon receipt. Where applicable, if Abacus is required to charge tax on ProServ charges, such taxes will be in addition to the amounts charged for such services. Abacus will not continue to work on a Professional Service project until the last progress bill payment has been processed and posted to the account. Client understands that the estimate to complete the services set forth in the SOW is only an estimate, and it may require more hours to complete the services. To the extent that additional hours are required to complete the work, Abacus will provide a change order request to be approved by Client and Client agrees to pay the additional hours estimated to complete the services set in the change order. Where Client has available hours in Client’s ProServ Account, the additional hours needed to complete the services will be debited from Client’s ProServ Account. Where Client does not have sufficient hours available in Client’s ProServ Account to cover all of the hours needed to complete the services Abacus will invoice Client for the additional hours that have not been paid and Client agrees to make payment upon receipt of the invoice. To the extent that it takes Abacus less than the estimated allocated hours to complete the services set forth in the SOW or Client wishes to cancel the services or Project, the remaining hours purchased that were not expended by Abacus in an effort to complete the services contemplated by the SOW will be credited back to Client’s ProServ Account for future use. Client hereby acknowledges that all ProServ hours purchased by Client shall expire on the year anniversary of when those particular hours were purchased. Client further acknowledges that to the extent Abacus is required to travel to complete the ProServ contemplated in a SOW, Client shall be responsible for paying Abacus’ reasonable expenses associated with such travel. Any fees due under these Terms and Conditions that are greater than 15 days past due shall bear interest at the rate of one and one-half percent per month.
7. Managed Services– Where identified in a Service Order Form or Service Order Addendum, Managed Services shall include the monthly allotment of ProServ hours specified in the applicable Order. Client may apply its balance of Managed Services hours to any ProServ work except HotDocs Integration or Template Development. Managed Services shall be considered a separate ProServ Subscription, governed by the distinct terms set forth herein, but sold co-terminus with Client’s subscription for AbacusNext products. As such, should Client elect not to use Managed Services for any part of its remaining term, Client shall not be relieved of its obligation to continue to pay for Managed Services until the end of the applicable term. Any ProServ hours consumed beyond Client’s monthly allotment for Managed Services shall be billed a la carte at £200 per hour. Any unused hours shall expire at the end of Client’s billing cycle (i.e. the day where Client makes its MRC payment for any active subscriptions) and shall not roll over to any subsequent month. Any ProServ work which results in a partially used Managed Services hour shall be rounded up to the nearest hour. In order to apply Managed Services hours to any project requested by Client, Client must adhere to the project request process and/or change management process specified by Abacus, which Abacus may change at its sole discretion.
8. Limitation of Liability – IN NO EVENT SHALL ABACUS OR ANY OF ITS SUBSIDIARIES BE LIABLETO CLIENT 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 ABACUS 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 PROSERV PERFORMED BY ABACUS, OR TO ANY ACT OR OMISSION OF ABACUS, EXCEED THE AMOUNT ACTUALLY PAID BY CLIENT TO ABACUS FOR THE PROSERV AT ISSUE. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. CLIENT ACKNOWLEDGES THAT THIS PROVISION REFLECTS THE AGREED UPON ALLOCATION OF RISK FOR ABACUS TO PROVIDE THE PROSERV AND THAT ABACUS WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
9. Warranty – Due to numerous factors, including but not limited to the rapid changes in technology, how data is stored or accessed in various applications, Abacus cannot guarantee that the deliverables identified in a SOW will be completed precisely as originally contemplated or at all. Abacus does warrantthat it will use its best efforts to complete the work contemplated in a SOW and that such work be performed in a professional manner.
THIS WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY ORAL OR WRITTEN REPRESENTATIONS, PROPOSALS OR STATEMENTS MADE ON OR PRIOR TO THE EFFECTIVE DATE OF ANY AGREEMENT BETWEEN CLIENT AND ABACUS.
10. 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 these Terms and Conditions, and (2) any breach or violation of any covenant or other obligation or duty of Client under these Terms and Conditions or under applicable law.
11. Severability – If any part or parts of these Terms and Conditions, or corresponding Service Order or SOW executed by Client or any future modifications are held invalid by a court of competent jurisdiction, the remaining parts of the these Terms and Conditions, or corresponding Service Order or SOW executed by Client or modifications will continue to be valid and enforceable.
12. Waiver – The waiver by either party of a breach or default in any of the provisions of Terms and Conditions, or corresponding Service Order or SOW executed by Client or any future modifications shall not be construed as a waiver of any succeeding breach of the same or other provisions; nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that is has or may have hereunder operate as a waiver of any breach or default by the other party.
13. Integration – These Terms and Conditions and the corresponding Statement of Work affirmatively accepted 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.
14. Governing Law and Dispute Resolution – If a dispute arises out of or in connection with Client’s HotDocs Subscription, the parties will attempt to settle it by mediation in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure. The prior sentence does not restrict either party’s freedom to commence legal proceedings to preserve any legal right or remedy or to protect any intellectual property rights or trade secrets whether by way of injunctive relief or otherwise. These Terms and Conditions or SOW executed by Client is governed by and is to be construed in accordance with the laws of England and Wales. Each of the parties irrevocably submits for all purposes (including any non-contractual disputes or claims) to the exclusive jurisdiction of the courts in England and Wales. Neither party will bring a legal action arising out of or related to these Terms and Conditions and/or corresponding SOW executed by Client or the services contemplated therein, more than two years after the cause of action arose.
15. Anti-Bribery – Abacus has an anti-bribery and anti-corruption policy. Abacus shall maintain and comply with the policy. Abacus shall provide a copy of the prevailing anti-bribery upon request.
16. Assignment – Neither party may assign the rights and obligations arising out of these Terms and Conditions and/or corresponding SOW (if any) affirmatively accepted by Client, 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 these Terms and Conditions 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 these Terms and Conditions and any corresponding SOW (if any) affirmatively accepted by Client will inure to the benefit of and be binding on the parties and their respective successors, heirs and permitted assigns.
17. Data Processing Addendum – The Data Processing Addendum set forth at www.abacusnext.com/dataprocessingaddendum is expressly incorporated into these Terms and Conditions by reference.