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. GRANT OF LICENSE – Abacus grants Client a non-exclusive, limited and non-transferable license to use the products and services that comprise Client’s QuickBooks 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 upfront payment of the Total Contractual Value. This license is limited to use within Clients Abacus Private Cloud Environment (which is the subject of a separate agreement between Abacus and Client). Separate license fees and validation codes are required for each business entity and computer where Client uses any of the products that comprise Client’s QuickBooks Subscription. Client agrees to pay a license fee for each person in the firm who uses any of the products that comprise Client’s QuickBooks Subscription, and only those users with unique login credentials (User ID) are entered into QuickBooks as operators may use those products or any of the other products that comprise Client’s QuickBooks Subscription. Client understands that such users must also have a separate license to access Client’s Abacus Private Cloud Environment. Abacus is under no obligation to grant Client additional licenses.
3. FEES AND INVOICING – With respect to Client’s QuickBooks Subscription, 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. Payments made by Clients located in Canada and charged in Canadian dollars will be processed through Abacus Data Systems Canada, Inc. Payments made by Clients located outside of North America will be processed by AbacusNext International LTD. All other payments will be processed by Abacus Data Systems, Inc. Client’s MRC for Client’s QuickBooks Subscription is billed in advance of Abacus providing Client that month’s QuickBooks 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. 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.
5. TERM – Unless stated otherwise in the Service Order Form, the term of Client’s QuickBooks 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 QuickBooks 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 QuickBooks Subscription converts to month-to-month, Client cannot terminate Client’s QuickBooks Subscription without providing Abacus at least 30 days written notice of cancellation.
6. 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 QuickBooks and any other ancillary services associated with that user, on a month-to-month basis for that particular user, which can be cancelled from Client’s QuickBooks Subscription withhold having to pay an Early Termination Fee (as discussed in Paragraph 18 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.
7. SUSPENSION – Abacus may, at its sole discretion, suspend Client’s QuickBooks Subscription if Client’s account is 5 days past due. In the event that Abacus suspends Client’s QuickBooks Subscription, and Client will not have the ability to import data into those programs. If Client wishes to reinstate its QuickBooks Subscription, Client must make its account current and pay a re-activation fee of $250 (“Re-Activation Fee”).
8. TERMINATION – Either party may terminate Client’s QuickBooks 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 QuickBooks 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 QuickBooks 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 QuickBooks 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 QuickBooks Subscription. The only time Client can terminate Client’s QuickBooks 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 26 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 QuickBooks Subscription for cause (with respect to the alleged breach). Abacus may terminate Client’s QuickBooks Subscription for cause if Client fails to make its account current and pay the Re-Activation Fee within 30 days of Client’s QuickBooks Subscription being suspended. To the extent that Client’s installation of QuickBooks has not already been converted into read only mode, upon termination of Client’s QuickBooks Subscription (for any reason), Client’s installation of QuickBooks will convert to read only mode as of the effective date of Client’s QuickBooks Subscription. Client may only terminate Client’s Amicus Maintenance Plan or Amicus Support Plan if Abacus is unable to correct any System Related Error after 30 days of Client after providing Abacus written notice of the issues (in the manner set forth in Paragraph 26 below). Abacus may terminate the Amicus Maintenance Plan if Client fails to make annual payments as agreed to under the plan within 30 days of those annual payments becoming due. In the event of the termination of Client’s Amicus Maintenance Plan or Amicus Support Plan, Abacus will be relieved of its obligation to provide support to the Client, and Client will no longer be entitled to support, upgrades, or updates of QuickBooks; Client would subsequently need to purchase an QuickBooks Subscription in order to receive support, patches, upgrades, or updates to QuickBooks, which may necessitate that Client update to the latest version of QuickBooks.
9. 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.
10. LIMITATION OF LIABILITY – WITH THE EXCEPTION OF ANY UNAUTHORIZED COPYING AND/OR DISTRIBUTION BY CLIENT OF QUICKBOOKS AND/OR ANY OF THE PRODUCTS AND/OR SERVICES THAT COMPRISE CLIENT’S QUICKBOOKS SUBSCRIPTION AND/OR THAT ARE COVERED BY AN AMICUS MAINTENANCE PLAN OR AMICUS SUPPORT PLAN, 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 QUICKBOOKS 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 QUICKBOOKS SUBSCRIPTION GIVING RISE TO THE CLAIM IN THE THREE MONTHS PRECEDING THE CLAIM OR THE AMOUNT ACTUALLY PAID BY CLIENT FOR THE THEN ACTIVE AMICUS MAINTENANCE PLAN. LIKEWISE, WITH THE EXCEPTION OF CLAIMS ARISING OUT OF THE UNAUTHORIZED COPY OR DISTRIBUTION OF QUICKBOOKS AND/OR THE PRODUCTS AND/SERVICES THAT COMPRISE CLIENT’S QUICKBOOKS SUBSCRIPTION BY CLIENT, CLIENT’S TOTAL AGGREGATE AND CUMULATIVE LIABILITY TO ABACUS FOR CLAIMS ARISING OUT OF CLIENT’S QUICKBOOKS SUBSCRIPTION, AMICUS MAINTENANCE PLAN, AMICUS SUPPORT PLAN OR THE TERMS OF THE EULA SHALL NOT EXCEED THE EARLY TERMINATION FEE (AS DEFINED IN PARAGRAPH 18). 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 QUICKBOOKS 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.
11. NON-SOLICITATION OF ABACUS’ EMPLOYEES – During the term of Client’s license to use QuickBooks (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.
12. FORCE MAJURE – Abacus 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.
13. 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.
14. 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.
15. 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:
Chief Executive Officer
Abacus Data Systems, Inc.
4850 Eastgate Mall
San Diego, CA 92121
16. GOVERNING LAW – This EULA, any corresponding Service Order or Service Order Addendum executed by Client, and/or Client’s QuickBooks Subscription, Amicus Maintenance Plan or Amicus Support Plan, 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 QuickBooks 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 QuickBooks 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.
17. PREVAILING PARTY – In the event of any litigation arising out of or related to Client’s QuickBooks Subscription, Client’s Amicus Maintenance Plan, Amicus Support Plan, this EULA, any corresponding Service Order executed by Client and/or Client’s QuickBooks 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.
18. 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.
19. DATA PROCESSING ADDENDUM – The Data Processing Addendum set forth at www.abacusnext.com/dataprocessingaddendum is expressly incorporated into this EULA by reference.