Results End User License Agreement ("EULA") for Use in Abacus Private Cloud ("APC")

RESULTS SOFTWARE 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 Results Software, as well as all components of the software, 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. RESULTS SOFTWARE – In any Service Order Form and/or Service Order Addendums (if any) accepted in writing by Client and herein, “Results Software” refers to a non-exclusive, limited and non-transferable license to use the Results Software customer relationship management software.  This license does not allow for the use of Results Software within a Remote Desktop Services session, Terminal Services Session, in a cloud (private or multitenant) environment, or at multiple physical locations connected to a single database. Client agrees to pay a license fee for each person in the firm who uses any of the products that comprise Client’s Results Subscription. Abacus is under no obligation to grant Client additional licenses.  During the term of Client’s Results Subscription, Client shall be entitled to upgrades to Results Software released by Abacus that are part of Client’s Results Subscription. Client acknowledges that if it accepts any upgrades to Results Software, any license Client may have had to prior versions of Results Software terminates upon the installation of the updated version of Results Software.  Client agrees that it will not rent, lend, or transfer the installation of Results Software or any of its rights under this Agreement without the express written permission of Abacus.  Ownership and all rights not expressly granted are reserved by Abacus. The migration of pre-existing data to Results Software 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.

2. DATABASE ASSOCIATED WITH RESULTS SOFTWARE – Results Software requires a database application to fully function, which can be satisfied by using Microsoft SQL Express, Microsoft SQL, or Microsoft Access.  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 Results (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 Results 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, “MS ACCESS” means a non-transferable license to use Microsoft Access only during Client’s Results Subscription (contingent upon Client timely paying its MRC).  It is agreed that with respect to MSSQL EXPRESS, MSSQL and MS ACCESS, 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, MSSQL, OR MS ACCESS. If procured on behalf of Client, any MSSQL EXPRESS, MSSQL or MS ACCESS license will be deemed part of Client’s Results Subscription.  Thus any suspension or termination of Client’s Results Subscription will also result in a corresponding suspension or termination of the applicable database license.

 2. 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 Results Subscription is billed in advance of Abacus providing Client that month’s Results 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.

3.  SYSTEM REQUIREMENTS –

Workstation Operating Systems

Results is compatible with the following Workstation Operating Systems:

  • Windows 10
  • Windows 8  (32 & 64 bit versions)
  • Windows 7  (32 & 64 bit versions)

Server Operating Systems

Results is compatible with the following Server Operating Systems:

  • Windows Server 2016
  • Windows Server 2012
  • Windows Server 2008
  • Windows Server 2003
  • Windows SBS Server

Hardware Requirements

  • Processor
  • Minimum: 1.6Ghz or greater
  • Recommended: Intel Core 2 Duo
  • RAM
  • Minimal memory requirements as specified by the Microsoft for Windows OS in use:
  • Windows XP: 64MB (128MB recommended)
  • Windows Vista: 512MB
  • Windows 7: 1GB for 32 bit, 2GB for 64 bit
  • Windows 8: 1GB for 32 bit, 2GB for 64 bit
  • Disk Space
  • Workstation
  • Minimum: 40 MB
  •  Typical: 50 MB
  • File Server
  • Minimum: 60 MB
  • Typical: 100 MB

 4. UPDATES AND PATCHES – During the Term of Client’s Results Subscription, Abacus will notify Client of updates and patches.  It is ultimately Client’s responsibility to ensure that these updates and patches are installed.  In part, the updates and patches to are designed to thwart the continual threat of security breaches (including data mining agents and other malware) which if not prevented would make the Client more vulnerable to having its data compromised. Client hereby acknowledges that it is not best practices to use a version of any of the services or products that comprise Client’s Results Subscription that is not the most current and up to date version offered by Abacus, and that doing so, Client would be putting the integrity of the system and Client’s data at heightened risk of corruption, hard shutdown, and security breaches that could extend beyond the data accessed by the products or services that comprise Client’s Results Subscription.

5. SUPPORT FOR SERVICE – Given the rapid changes with technology, Abacus will provide technical support and updates to the Service only for the most recent version of the Service provided Client’s subscription for support and updates is current.  Abacus cannot guarantee how long any particular version of the Service will remain the current version.  The Service requires connecting to the Internet from time to time for Service 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 Results Software Support by calling (800) 713-7013 or via e-submitting a support ticket at https://resultssoftware.freshdesk.com/support/tickets/new.   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.

 6. 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 (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 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 Results 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.  

7.  TERM – Unless stated otherwise in the Service Order Form, the term of Client’s Results 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 Results 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 Results Subscription converts to month-to-month, Client cannot terminate Client’s Results Subscription without providing Abacus at least 30 days written notice of cancellation.

 8.  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 Results and any other ancillary services associated with that user, such as MS365 - On Premises (wherever applicable) on a month-to-month basis, which can be cancelled from Client’s Results Subscription without having to pay an Early Termination Fee (as discussed in Paragraph 13 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.

9. SOPHOS ENDPOINT ANTIVIRUS & MALWARE PROTECTION - In any Service Order Form and/or Service Order Addendums (if any) affirmatively accepted by Client and herein, “Sophos Endpoint Antivirus & Malware Protection” means a non-transferable license to deploy Sophos Endpoint Antivirus & Malware Protection product on Client’s work stations only during the term set forth in the Service Order and/or Service Order Addendums (contingent upon Client timely paying its MRC), and is otherwise governed by all terms and policies set forth by Sophos.  For further information on these terms, contact Sophos directly.  ABACUS DOES NOT WARRANT THE PERFORMANCE OR FUNCTIONALITY OF SOPHOS ENDPOINT ANTIVIRUS & MALWARE PROTECTION. If purchased, this Sophos Endpoint Antivirus & Malware Protection license will be deemed part of Client’s Results Subscription.  Thus any suspension or termination of Client’s Results Subscription will also result in a corresponding suspension or termination of the Sophos Endpoint Antivirus & Malware Protection license. 

10. MS365 - ON PREMISES – In any Service Order Form and/or Service Order Addendums (if any) affirmatively accepted by Client and herein, “MS365 (On Premises)” means a non-transferable license per user to use Microsoft 365 installed on Client’s premises only during the term of Client’s Results Subscription (contingent upon Client timely paying its MRC), and is otherwise governed by all terms and policies set forth by Microsoft applicable to MS365, and may include penalties for early termination of the MS365, which will be Client’s sole responsibility to pay.  For further information on these terms, contact Microsoft directly.  The particular MS365 license selected by Client shall be either an E1, E3 or Exchange Online Plan 1, with the particular rights and functionality for each such licenses being determined by Microsoft. ABACUS DOES NOT WARRANT THE PERFORMANCE OR FUNCTIONALITY OF MS365 OR DATA THAT RESIDES IN MICROSOFT’S CLOUD OR INFRASTRUCTURE. If purchased, this MS365 license will be deemed part of Client’s Abacus Law Subscription.  Thus any suspension or termination of Client’s Results Subscription will also result in a corresponding suspension or termination of the MS365 license.  Abacus will serve as Administrator of Client’s MS365 account.   Client acknowledges that it will not receive Administrative rights to MS365.  The deployment of MS365 on Client’s premises shall be in the form supplied by Microsoft without modification and with all default settings pre-determined by Microsoft.  Professional Services can be retained on an hourly basis to make any desired changes to the settings of MS365.   Any such services shall be governed by a separated SOW.  Client hereby understands that as a Certified Microsoft partner, Abacus may receive a payment from Microsoft arising from the sale of MS365.

11.  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.

12.  SUSPENSION - Abacus may, at its sole discretion, suspend Client’s Results Subscription if Client’s account is 5 days past due.  In the event that Abacus suspends Client’s Results Subscription will convert to read only format, and Client will not have the ability to import data into the program.  If Client wishes to reinstate its Results Subscription, Client must make its account current and pay a re-activation fee of $250 (“Re-Activation Fee”).

13. TERMINATION - Either party may terminate Client’s Results 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 Results 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 Results 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 Results 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 Results Subscription. The only time Client can terminate Client’s Results Subscription for cause is if Abacus fails to cure a material breach of any provision in this EULA within 30 days of Abacus receiving written notice of that breach (in the manner set forth in Paragraph 26 below). In such an instance, 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 Results has not already been converted into read only mode, upon termination of Client’s Results Subscription (for any reason), Client’s installation of Results will convert to read only mode as of the effective date of Client’s Results Subscription.

14. SERVICE OWNERS RIGHTS - Client is granted only the right to use any of the products or services that comprise Client’s Results Subscription as limited in this EULA. Ownership and all rights not expressly granted are reserved by Abacus.

15.  DISCLAIMER OF WARRANTY - ABACUS TRIES TO KEEP ALL OF THE PRODUCTS AND SERVICES THAT COMPRISE CLIENT’S RESULTS 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 RESULTS 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 RESULTS SUBSCRIPTION WILL ALWAYS FUNCTION WITHOUT DISRUPTIONS, DELAYS OR IMPERFECTIONS.

16.  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 RESULTS 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 RESULTS 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 RESULTS 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 RESULTS SUBSCRIPTION BY CLIENT, CLIENT’S TOTAL AGGREGATE AND CUMULATIVE LIABILITY TO ABACUS FOR CLAIMS ARISING OUT OF CLIENT’S RESULTS SUBSCRIPTION OR THE TERMS OF THE EULA SHALL NOT EXCEED THE EARLY TERMINATION FEE (AS DEFINED IN PARAGRAPH 20).  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 RESULTS 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.

17.  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.

18.  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.

19.  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:

General Counsel

Abacus Data Systems, Inc.

9171 Towne Centre Dr. Suite 200

San Diego, CA 92122

20.  GOVERNING LAW - This EULA, any corresponding Service Order or Service Order Addendum executed by Client, and/or Client’s Results 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 Results 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 Results 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.

21.  PREVAILING PARTY - In the event of any litigation arising out of or related to Client’s Results Subscription, this EULA, any corresponding Service Order executed by Client and/or Client’s APC 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.

22.   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 Results 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 Results 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/results-eula. Client’s continued use of the Services after the 30 day will serve as consent to the changed terms.