QUICKBOOKS END USER LICENSE AGREEMENT (“EULA”) FOR USE IN 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 QuickBooks software in Client’s Abacus Private Cloud Environment. By purchasing QuickBooks software as part of Client’s Abacus Private Cloud Subscription, Client agrees to be bound by the terms of this EULA.
1. INTUIT INC. - QuickBooks Software® is owned by Intuit Inc. (“Intuit”). All rights reserved. QuickBooks software is hosted by Abacus under license from Intuit Inc.
(a) Client’s hereby acknowledges that Client’s use of QuickBooks Software as part of Client’s Abacus Private Cloud Subscription is governed by Intuit’s End User License Agreement for QuickBooks (which is incorporated by reference).
(b) Client further acknowledges that Client’s right to use QuickBooks software that is included as part of Client’s Abacus Private Cloud Subscription is limited to use within Client’s Abacus Private Cloud Environment and subject to Client making payment of the Monthly Recurring Charge (“MRC”), for Client’s Abacus Private Cloud Subscription, on the first of each month or upfront payment of the Total Contractual Value.
(c) Client hereby grants Abacus the right to share Client’s customer license information, including all license related keys and numbers, payroll keys and numbers, and number of users with Intuit for verification and tracking purposes.
(d) Client hereby acknowledges that Intuit is not a party to any agreement Client has with Abacus (including but not limited to Client’s Abacus Private Cloud Subscription).
(e) CLIENT HEREBY DISCLAIMS ANY LIABILTY BY INTUIT FOR THE PROVISION OF QUICKBOOKS HOSTING BY ABACUS.
(f) CLIENT HEREBY DISCLAIMS ANY WARRANTIES BY INTUIT FOR PROVISIONS OF QUICKBOOKS HOSTING BY ABACUS.
(g) Client hereby further acknowledges that Intuit is responsible solely for QuickBooks software in accordance with Intuit’s own End User License Agreement for QuickBooks software and as it would normally operate on Client’s own desktop PCs, and not for support, or relating to, Client’s Abacus Private Cloud Subscription or the interoperation of QuickBooks within Client’s Abacus Private Cloud Environment, or for any other products or services offered by Abacus or other third parties.
(h) Client understands and agrees that QuickBooks software is subject to Intuit’s discontinuation policies. Upon receipt of notice by Intuit that a particular version of the QuickBooks is being discontinued, Client agrees to upgrade to the latest version of QuickBooks, unless Intuit expressly agrees to permit use of discontinued software.
(i) Client authorizes Abacus to install QuickBooks software updates at its discretion and understands that the installation of such software updates may result in Client’s need to perform a data file update of Client’s QuickBooks company file(s).
(j) Client hereby acknowledges that all user licenses to use QuickBooks software within Client’s Abacus Private Cloud Environment must be purchased through Abacus.
(k) Client hereby acknowledges that Client’s ability to retrieve QuickBooks data from Client’s Abacus Private Cloud Environment shall be governed by same terms that govern the retrieval of data as described within the Abacus Private Cloud Terms and Conditions set forth at www.abacusnext.com/abacus-private-cloud-terms-conditions. Client further acknowledges that Intuit shall not have any obligation or responsibility to facilitate in the retrieval of Client’s QuickBooks data files from any services provided by Abacus.
(l) INTUIT SHALL HAVE NO LIABILITY FOR ANY DAMAGES OF ANY KIND ARISING OUT OF THE LOSS OR THEFT OF CLIENT’S DATA.
(m) Client hereby acknowledges that Client cannot technically or otherwise allow two or more users to share a single account and set of log-in credentials to use QuickBooks software.
(n) Client hereby acknowledges that Client is solely responsible for the actions and behavior of its users.
2. PART OF CLIENT’S ABACUS PRIVATE CLOUD SUBSCRIPTION – Quickbooks Software and corresponding users identified on a Service Order Form or Service Order Addendum shall be considered part of Client’s Abacus Private Cloud Subscription.
3. CLIENT’S DATA – Client shall at all times retain ownership of all data generated or imported into the QuickBooks software installation within Client’s Abacus Private Cloud Environment. 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.
4. DISCLAIMER OF WARRANTY– CLIENT ACKNOWLEDGES THAT ITS USE OF QUICKBOOKS SOFTWARE IS AT ITS OWN RISK. ABACUS IS PROVIDING QUICKBOOKS SOFTWARE 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 QUICKBOOKS SOFTWARE WILL ALWAYS FUNCTION WITHOUT DISRUPTIONS, DELAYS OR IMPERFECTIONS.
5. LIMITATION OF LIABILITY– IN CONNECTION WITH QUICKBOOKS SOFTWARE, 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 PRODUCTS OR SERVICES 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 QUICKBOOKS SOFTWARE 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 SERVICES BY CLIENT, CLIENT’S TOTAL AGGREGATE AND CUMULATIVE LIABILITY TO ABACUS FOR CLAIMS ARISING OUT OF THE QUICKBOOKS SOFTWARE 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 HOTDOCS SOLUTION(S) 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.
6. 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.
7. UPDATES/CHANGES TO EULA – 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/quickbooksapceula.