SUBSCRIPTION AND LICENSE AGREEMENT

Preamble

Thank you for your interest in OfficeTools Cloud.  We appreciate your business. It is our goal to provide you with the very best online practice management solution for accounting professionals.  A service like this has multiple aspects: it includes software that we have developed, a web site, a service in the provision of data storage and communication, 3rd party software and services from companies like Microsoft® that we have licensed, and many other items of our intellectual property.  You need to subscribe to the service in order to be licensed to use these, and you need to agree to the terms under which we provide them.  That’s what this document is.  Please read it carefully.  By using OfficeTools Cloud, you are agreeing to these terms.  If you do not agree with 100% of these terms, do not use OfficeTools Cloud.
The odds are, if you’re interested in this software, you’re an accountant or work in an accounting firm.  You should know that Abacus Data Systems, Inc. and its licensors retain all the intellectual property in the software being licensed to you as part of the service, and that you are acquiring a non-exclusive license to use it, as described below.  You’re not “buying” the software and you won’t “own” it – you’re getting a license to use it.  The service, and the related license, are only provided to each person paying for same, either directly or through you.  It is a subscription, so it only continues while you keep that subscription current.  And you know that software like this is licensed in many different places for use in many different circumstances, all at an extraordinarily low price considering the years of development that went into it.  We can’t provide any warranty about fitness for a particular purpose.  Those who are using it have to take responsibility for whatever they do with it.  We spell all this out in detailed terms below.  You should understand the importance of these provisions.  If you don’t, please seek advice from your lawyer before you use the software.

1. What this is about

This is a binding agreement for the terms of service for OfficeTools Cloud, including the license for the software.

OfficeTools Cloud includes the Web site; the accounting practice management system, tools and services provided through that site; all software, applets, services, data, text, images, sounds, video and content made available through the site, including all additions or updates thereto which are made from time to time; and all related documentation, whether tangible or electronic.

If you choose to subscribe to the optional OfficeTools Hosted Exchange service, this agreement covers it as well.

It is important that you read all of this document and agree to every term. If you do not agree to everything, you are not authorized to use OfficeTools Cloud and must not log in.

Every time you log into OfficeTools Cloud you are confirming your agreement to these terms.

This agreement shall remain in force at all times that you have access to OfficeTools Cloud.

2. Who is making this agreement

This agreement is between us, Abacus Data Systems, Inc. (“Abacus”) and you (“You”), the customer who is using OfficeTools Cloud.

If You are using OfficeTools Cloud as part of or at the direction of a corporation, partnership or other legal entity, regardless of whether such entity may have a separate agreement with us, You are nevertheless individually bound by this agreement.

If You are entering into this agreement on behalf of a company, partnership or other legal entity, You represent that You have the authority to bind such entity and its affiliates to this agreement, in which case the terms “You” or “Your” shall refer to such entity and its affiliates. If You do not have such authority, or if you do not agree with this agreement, You must not accept these terms and may not use OfficeTools Cloud.

You warrant that You are an eligible user of OfficeTools Cloud as described in Section 20 below. If you are not, you must not accept these terms and may not use OfficeTools Cloud.

3. Use of OfficeTools Cloud

Subject to the terms of this agreement, Abacus grants to You a subscription to use the OfficeTools Cloud service, including a personal, non-transferable, non-sublicensable, revocable and non-exclusive license to use OfficeTools Cloud, solely for your own internal business or personal purposes.

The grant of this license is conditional on compliance with this agreement, including payment of the periodic subscription fee (other than during the 21-day free trial period described below), as set out in the Payment Section below.

You agree that You will not misuse this right, which includes that You will comply with the requirement for no improper use as described in Section 21 below.

3a. OfficeTools Cloud Portal: Included with Client’s OfficeTools Cloud Subscription is a license for Client and its customers to use the SaaS-based OfficeTools Cloud Portal. The OfficeTools Cloud Portal enables Client and its customers to securely access and share information (including documents and OfficeTools Cloud activity entries like Tasks, Notes, Appointments invoices and payments). Information uploaded to the OfficeTools Cloud Portal by Client or customer shall be hosted within a Microsoft Azure instance within a SOC II Type II compliant data center, and shall remain in the OfficeTools Cloud Portal once uploaded. Client is able to manage its customers’ access to information uploaded by Client to the OfficeTools Cloud Portal by toggling visibility of each item (by selecting “Share” or “Unshare”). Only Client’s customers may manage access to information uploaded by Client’s customers.

4. Uptime Guarantee

Abacus commits that OfficeTools Cloud will be available to You at least 99.9% of the time every month.

The following are excluded from this uptime guarantee:

  • Scheduled maintenance of which we have notified You (we will endeavor to do this at a time that will inconvenience the fewest customers possible);
  • Events beyond Abacus’ reasonable control;
  • Failure of Your Internet access or any intermediate transit providers;
  • Any acts or omissions by or on behalf of You that cause OfficeTools Cloud to be unavailable; and
  • Services, hardware or software under Your control and responsibility whose performance causes OfficeTools Cloud to be unavailable.

This guarantee is not available if your subscription is not fully paid.

If in any month Abacus fails to maintain OfficeTools Cloud available to You as set out above, it is agreed that your compensation for this failure will be limited to the amounts set out in the Refunds & Credits Section below.

5. Technical Support

Abacus agrees to provide You with friendly technical support concerning your use of OfficeTools Cloud during the term that your subscription is valid and fully paid.

All requests for technical support must be initiated through the support system built into OfficeTools Cloud (click Help to find this).  Using this system ensures a higher quality of support and tracking of every incident.  It also contributes to a better product.

It is our expectation that most support incidents will be resolved through the online help system, chat system or email, but telephone support is also available through our toll-free line during regular business hours (9 am to 8 pm Eastern Time on business days). Onsite technical support is not included.

More details about the technical support Abacus is agreeing to provide to you can be found at abacusnext.com/support

6. Privacy

The privacy of your data is of the utmost importance to us. We are aware that You are probably an accountant or work in an accounting firm and that you have significant client confidentiality obligations. We will endeavor to support you in those when you are using OfficeTools Cloud.

The details of how we protect your privacy are set out in Abacus’ Privacy Policy, the terms of which are incorporated in this agreement by reference.

You agree to the treatment of information as set out in Abacus’ Privacy Policy.

7. Data Security

Abacus has implemented generally accepted industry standard systems and procedures to ensure the security and confidentiality of the data that You store in OfficeTools Cloud (“Your Data”), protect against anticipated threats or dangers to the security or integrity of Your Data, and protect against unauthorized access to or use of Your Data.

The principal storage of Your Data will be in secure facilities operated by Microsoft® Corporation (“Microsoft”) in the United States or Canada.

Abacus has a contractual relationship with Microsoft as a 3rd party cloud hosting provider for the operation of OfficeTools Cloud, including the secure storage and transmission of Your Data.  Abacus may change its 3rd party cloud hosting provider or the location at which Your Data is stored at its sole discretion.

Your Data is stored in protected format, and is 256-bit encrypted during transmission from its storage facility to You when you access it.

However, no method of transmission over the Internet, or method of electronic storage, is 100% secure. Therefore, while we strive to use reasonable means to protect Your Data, Abacus cannot guarantee its absolute security.

Neither Abacus (including any of its employees or agents) nor anyone acting on its behalf will access Your Data in a manner in which it is intelligible or recognizable, unless:

  • Required or permitted to do so by law, valid search warrant or court order (or equivalent); or
  • Requested to do so by You (or someone with Your authorization); provided that if You request Abacus to provide You with technical support on an issue relating to Your Data, that will be taken as a request by You to access Your Data for that limited purpose.

If Abacus is served with a legal request to produce or disclose any of Your Data (such as by subpoena or court order), we will endeavor to notify You of the disclosure request so as to provide You with the opportunity to intervene, unless we are prohibited from doing so by law.

Your Data is stored in a separate database, and is not merged with the data of any other customer of OfficeTools Cloud.

OfficeTools Cloud operates and Your Data is stored on redundant servers for each component of the system, so that if any server goes down, another server steps in to provide the same functionality.  In addition, the entire system is mirrored to a second geographical location, so that should the primary location suffer a total physical catastrophe, You can continue to use OfficeTools Cloud.

While all these steps provide You with a tremendous amount of security in Your Data, You acknowledge that You are also responsible for taking reasonable steps to access Your Data in a manner that protects its security.  This includes that You are responsible for using secure Internet connections, and recognize that unsecure connections (for example public hotspots) are more open to malicious interception.

8. Ownership of Data

Unless You store in OfficeTools Cloud data that was previously or otherwise owned by Abacus, Abacus claims no ownership rights whatsoever (by express or implied lien, operation of law, or otherwise) in Your Data.  However, access to and availability of Your Data in OfficeTools Cloud is at all times completely subject to the terms of this Agreement.

9. Data Backup

Your Data is duplicated by OfficeTools Cloud on a constant basis. Copies are maintained on six different servers in 2 different geographical locations, both of which are in the United States or Canada.

Should you wish to maintain your own backup or a snapshot of your data as of a specific date, contact the Abacus support team for assistance. An additional fee may be applicable.

10. Processing of Personal Data

Abacus is and will at all times remain a “Processor” with regard to Your Data provided by You to Abacus in connection with the performance of any obligations under the OfficeTools Cloud Terms of Service, Subscription and License Agreement.  Abacus is responsible for compliance with its obligations as a Processor under Applicable Data Protections Law.  Our obligations as a Processor and Your obligations as a “Controller” are set forth in detail in Addendum 1 [below].

11. Security of Passwords

The password that You use to access OfficeTools Cloud is a critical part of the security for Your Data.  You are entirely responsible for establishing a secure password and protecting its confidentiality.

You agree that you will use best practices in creating a unique password, changing it frequently and keeping it confidential.  Your password should be long, with a combination of characters, numbers, upper and lower case.

If you become aware of any unauthorized use of your password or of your OfficeTools Cloud account, or any suspicion that your password has been lost, stolen, compromised or misused, you agree to immediately notify Abacus.

Abacus shall not be liable for any loss that you incur as a result of someone else using your password, either with or without your knowledge.  You will indemnify Abacus and its employees, officers, directors, and affiliated companies, for all claims, damages, losses, liabilities, costs and expenses resulting from such use.

12. Responsibility For Your Account

You are responsible for any and all activities that occur under your login or OfficeTools Cloud account.

You are responsible for the accuracy and adequacy of personal information provided to OfficeTools Cloud in connection with your subscription.

You are responsible for all information, data, text or other materials that You put into OfficeTools Cloud, and for any intellectual property or other liability issues connected to your use or storage of that information.

You agree that your login may only be used by one person.

You may not use the account, username, or password of someone else.

The person or firm in whose name the account is activated is ultimately responsible for all use of the account, all actions of the users of that account and all the data uploaded to the account.

13. Modifications

Abacus encourages and welcomes your suggestions for the improvement of OfficeTools Cloud, and thanks you for all of your ideas.  You agree that in making those suggestions you recognize that Abacus is not obligated to compensate you for them, and that any intellectual property in them passes to Abacus.  You also commit that, in providing Abacus with any such suggestions, you are not infringing anyone else’s intellectual property, and will indemnify Abacus and its employees, officers, directors, and affiliated companies, for all claims, damages, losses, liabilities, costs and expenses should it ever be held liable for using your suggestions.

Abacus may from time to time modify OfficeTools Cloud by adding or removing features or functionality or changing their behavior.  These modifications can be made with or without notification to you.

Your continued use of OfficeTools Cloud after any such modifications constitutes acceptance of the modified version and agreement to use it under the terms of this agreement.

14. Payment

There is no charge for using OfficeTools Cloud for the first 21 days (the “21-day free trial period”).

If You do not provide your credit card details to Abacus within the 21-day free trial period, your account will be suspended after the 21 days and can only be reactivated by submitting your credit card information.  If you do not do so within 5 further days, all data that You entered during the 21-day free trial period will be irrevocably destroyed.

You agree that to continue to use OfficeTools Cloud after the 21-day free trial period, You will pay a service fee for each month that you have a valid login to use OfficeTools Cloud (the “Service Fee”).

You agree to pay the Service Fee on a periodic subscription basis in advance of the period to which it applies.

The service provided in this agreement is effective upon your payment of the Service Fee, shall continue for a period of one month or one year (depending on the fee paid), and shall renew for a further period upon each payment of the Service Fee.

Payment of the Service Fee is made by providing a valid credit card in the place provided for this in OfficeTools Cloud.

This payment is due on the monthly or annual anniversary of the first date on which you provide your credit card details.

Abacus does not keep or store your credit card information in any way.  Abacus passes this information in a secure format to a qualified merchant bank.  That bank will validate your credit card, and then charge the Service Fee to it each period during the currency of your subscription.  You agree that Abacus may share your credit card and related billing information with that merchant bank for that purpose as described.

You agree that your credit card may be charged monthly or annually in the amount of the Service Fee every period until You notify Abacus that (a) You wish to terminate this agreement in accordance with the Section on Termination below, or (b) You wish to use a different credit card for subsequent payments.

You are responsible for keeping your credit card information up to date. As changes to your credit card occur, You can easily enter them in the place provided in OfficeTools Cloud.

You agree that if for any reason your credit card fails to be successfully processed in payment for your OfficeTools Cloud subscription, after notification to you your ability to log into or use OfficeTools Cloud will be suspended until the payment is made.  If payment does not resume within 28 days of its failure date, this agreement will be terminated, as more fully described in the Section on Termination below.

The Service Fee shall be as set out in the Pricing Section of the OfficeTools Cloud web site. Abacus may change the Service Fee for the immediately subsequent period at any time at its sole discretion, provided it notifies You of any such change in advance.  Upon receiving such a notification, You have the option of continuing your subscription or cancelling it. Continuing to use OfficeTools Cloud after receiving a notification of a price change constitutes Your agreement to the new pricing for such subsequent month.

The Service Fee does not include any federal, state, provincial or local sales, use, value added or similar taxes, including those taxes commonly known as the GST/HST and the Quebec Sales Tax (collectively, “Sales Taxes”).  If Abacus is required by law or the administration thereof to collect any Sales Taxes from You, then You shall pay such Sales Taxes to Abacus concurrent with the payment upon which the Sales Taxes are calculated.  If Abacus is not required by law or the administration thereof to collect applicable Sales Taxes from You, then You shall be solely responsible for reporting and remitting such Sales Taxes to the appropriate governmental authority.

You agree that if the total data stored in OfficeTools Cloud by You exceeds 10 GB per licensed user, additional charges will apply.

Any accrued but unpaid Service Fees may accrue late charges at the rate of 1% of the balance per month, or the maximum rate permitted by law, whichever is lower, and You give Abacus permission to charge your account for such accrued and unpaid fees at any time on or after they have accrued.  You shall be liable for all costs of collection incurred by Abacus including, collection agency fees, reasonable attorney’s fees and court costs if You fail to comply with the payment obligations set forth herein.

15. Adding Users

The OfficeTools Cloud service is based on an enterprise license, for a specified number of users.

During the 21-day free trial period you may add as many users to your OfficeTools Cloud subscription as you like.

However, once the Service Fee becomes payable for using OfficeTools Cloud, it is payable for each person who is using OfficeTools Cloud in your firm.

Each person who uses or logs into OfficeTools Cloud in your firm will be provided with their own separate service, and therefore will require their own separate log-in to be added to the license, to be supported by the Service Fee for each of the services.  This applies whether the people who are using it do so simultaneously or not, and whether they use the same login ID or not.

Any new users that are added to your firm after your subscription is on a payment basis must pay the Service Fee immediately, without a further free trial period.

The person who provides the credit card is responsible for the Service Fees for all users in that firm.

You agree that from time to time Abacus may audit your compliance with the above terms, including visiting your user sites for such purpose.

16. OfficeTools Hosted Exchange

OfficeTools Hosted Exchange is the hosted Microsoft Exchange® service that is offered as an optional companion product to OfficeTools Cloud.

Your use of OfficeTools Hosted Exchange is governed by the terms of this agreement.

In addition, there are two separate documents that contain specific terms relating to the OfficeTools Hosted Exchange service, and the protection of certain third-party rights in that service. These are the OfficeTools Hosted Exchange Master Service Agreement (MSA), and the OfficeTools Hosted Exchange Service Level Agreement (SLA). These documents are linked to their names in this paragraph, and can be read by clicking on those links.

You agree that you have clicked on those links and read those agreements in full, the terms of which are incorporated into this agreement by reference if you have subscribed to OfficeTools Hosted Exchange.

If you have subscribed to OfficeTools Hosted Exchange, You agree that you are bound by the terms in those documents.

Should the terms of those agreements be inconsistent in any way with the rest of this main agreement, the terms of the specific OfficeTools Hosted Exchange agreements prevail.

17. Refunds & Credits

If Abacus fails to maintain the uptime guarantee (as described above), You will be entitled to a credit on the following basis:

  • 99% or better uptime (as calculated on a monthly basis): 2% credit
  • 95% – 98.9% uptime (as calculated on a monthly basis): 10% credit
  • 90% – 94.9% uptime (as calculated on a monthly basis): 20% credit
  • 80% – 89.9% uptime (as calculated on a monthly basis): 30% credit
  • 79.9% or less uptime (as calculated on a monthly basis): 50% credit

Credits for lack of availability are limited to the total amount of Service Fees paid by You to Abacus for the month in which Abacus fails to comply with the uptime guarantee.

To receive credits, You must submit a request for credits to Abacus by email or other written communication within 10 business days of resolution of the service unavailability incident for which credits are requested.

Apart from the above credits for the uptime guarantee, You agree that there will be no refunds or credits of Service Fees once they have been paid to Abacus.  This includes no refunds for partial months of your subscription if you terminate this agreement partway through a billing month, or for future unused months if you have prepaid for multiple months, and no refunds for months in which you have a paid subscription but never use OfficeTools Cloud.

If you reduce the number of licensed users in your firm’s subscription, the corresponding reduction in your Service Fees will take effect in the next billing period after you make the reduction.  You may have to reenter your credit card for this reduction to take effect.

18. Cancellation & Termination

Your subscription will continue and your credit card will continue to be charged until you cancel your subscription. You are responsible for cancelling your own subscription.

You may cancel your subscription at any time by logging into OfficeTools Cloud, going to the Licensing Section of the Options that are found at the top of the screen, and following the instructions there.

There are no charges for cancelling a subscription. Subscriptions cancelled prior to the end of the current billing period will not be charged again in the following billing period.

On the cancellation or termination of your subscription all login IDs and passwords issued to You to access OfficeTools Cloud will be deactivated upon the end of the current billing period and thereafter you will no longer be able to use it.

Abacus has the right in its sole discretion to suspend or terminate the service, including your license, without notice to you if in good faith Abacus believes you have failed to comply with any of the terms of this agreement, including if you fail to pay the required Service Fee. Any such termination by Abacus shall be in addition to and without prejudice to such other legal rights and remedies as may be available, including injunction and other equitable remedies.

You expressly agree and acknowledge that upon termination of your subscription service for any reason (whether terminated by You or by Abacus) ALL YOUR DATA IN OFFICETOOLS CLOUD (INCLUDING CLIENT FILES, DOCUMENTS, EMAILS AND EVERYTHING), IS SUBJECT TO IMMEDIATE DELETION AND IN ALL CASES WILL BE IRREVOCABLY DELETED AND DESTROYED WITHIN APPROXIMATELY 28 DAYS OF TERMINATION.  Accordingly, prior to cancelling your subscription it is extremely important that you plan ahead and remove any of Your Data that you want to use or have access to in the future.

The Abacus support team will provide you with instructions for obtaining a copy of Your Data at any time while your subscription is valid, or will assist you in doing so for an additional fee.

Abacus shall not be liable for any damages resulting from any termination of your subscription.

The provisions of Sections 14, 16, 18, 19, 21 to 25 and 27 to 29 herein shall survive any cancellation or termination of this agreement.

19. Intellectual property in OfficeTools Cloud

OfficeTools Cloud is licensed, not sold, to You.  You agree that Abacus owns all rights, title and interest, including copyright, patent, trade secret, and all other intellectual property rights (regardless of whether those rights have been registered or otherwise publicly recorded or recognized, and wherever in the world those rights may exist), in OfficeTools Cloud, related documentation, videos, FAQs, web sites, trade- marks, service marks, logos, domain names, taglines, names and other materials that accompany OfficeTools Cloud.  No title to the intellectual property in OfficeTools Cloud or these associated materials is transferred to you by this agreement.  If You are ever held or deemed to be the owner of any intellectual property rights in OfficeTools Cloud, then you hereby irrevocably assign to Abacus all such rights, title and interest and agree to execute all documents necessary to implement and confirm the letter and intent of this Section.

Your rights to use OfficeTools Cloud are subject to and limited by the terms of this agreement. Abacus reserves all rights not expressly granted to You in this agreement. This agreement does not grant You any rights to trade-marks or service marks of Abacus.

20. Eligible Users

To be eligible to enter into this agreement and become a user of OfficeTools Cloud, you represent and warrant that You:

  • Have full right, power and authority to agree to and be bound by this agreement;
  • Will only maintain one service subscription at any given time;
  • Are not a competitor of Abacus and/or are not using OfficeTools Cloud for reasons that are adverse to, or can reasonably be expected to compete with, OfficeTools Cloud and/or Abacus;
  • Agree to provide, at your cost, all equipment, software (other than OfficeTools Cloud) and Internet access necessary to use OfficeTools Cloud.

21. Improper Use

You agree that You will not:

  • Copy or reproduce OfficeTools Cloud or any of its source code for any purpose;
  • Use or transmit any of the OfficeTools Cloud HTML, cascading style sheets or other source code that may be viewable for any purpose other than your personal use of OfficeTools Cloud;
  • Rent, lease, loan, license, sublicense, sell, resell, transfer, assign, distribute, time share, provide service bureau or commercial hosting services or otherwise commercially exploit or make OfficeTools Cloud available to any third party;
  • Charge a fee to other users for the use of OfficeTools Cloud or charge a fee to those users for access to general services which might include access to OfficeTools Cloud;
  • Modify, adapt or create derivative works based upon OfficeTools Cloud, its design or its “look and feel”, in whole or in part;
  • Reverse engineer, decompile, disassemble or otherwise reduce or attempt to reduce to a human perceivable form any of OfficeTools Cloud in any way;
  • Permit third parties to use OfficeTools Cloud in any way that would constitute a breach of this license agreement;
  • Modify another website or URL so as to falsely imply that it is associated with OfficeTools Cloud;
  • Use OfficeTools Cloud to process data on behalf of any third party, or
  • Use OfficeTools Cloud in any unlawful manner or in any manner that interferes with or disrupts the integrity or performance of OfficeTools Cloud and its components.

You agree that You will not violate or attempt to violate any security features of OfficeTools Cloud, including,  (a) accessing content or data not intended for you, or logging into an account that you are not authorized to access; (b) attempting to probe, scan, or test the vulnerability of OfficeTools Cloud, or any associated system or network, or to breach security or authentication measures without proper authorization; (c) using any “bots”, “spiders”, scripts, or other similar devices or processes in connection with OfficeTools Cloud; (d) interfering or attempting to interfere with service to any user, host, or network, including by means of submitting a virus to the OfficeTools Cloud website, overloading, “flooding”, “spamming”, “crashing” or “distributed denial of service” attacks; (e) using OfficeTools Cloud or OfficeTools Hosted Exchange Mail to upload, post, host, or transmit unsolicited email, “Spam”, short message service “SMS” messages, viruses, self-replicating computer programs, “Worms” or any code of a destructive or malicious nature; or (f) forging any TCP/IP packet header or any part of the header information in any email or in any posting using OfficeTools Cloud or OfficeTools Hosted Exchange Mail.

You agree not to use OfficeTools Cloud in any manner which may infringe the copyright or intellectual property rights of others, or in any manner which is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or in violation of this agreement

22. Warranties

Subject to this Section 22, You expressly acknowledge and agree that use of OfficeTools Cloud is at your sole risk.  Abacus does not warrant or make, and expressly disclaims, any representations, covenants or conditions, express or implied, regarding the use or the results of the use of OfficeTools Cloud or related materials or services in terms of their correctness, accuracy, reliability, suitability for any particular purpose, ability to meet any particular requirements, expectations or otherwise.  No oral or written information, representation or advice given by Abacus or an Abacus representative shall create a warranty or increase the scope of this warranty.  You agree that this written warranty supplants and replaces any oral or written warranty You may have otherwise received.

Except as provided herein, OfficeTools Cloud and related material are provided “AS IS, AS AVAILABLE AND WITH ALL FAULTS” without warranty or condition of any kind, including the implied warranties or conditions of merchantability, merchantable quality, non-infringement and fitness for purpose, or any implied representations or warranties arising out of course of performance, course of dealing or usage of trade.  Abacus does not warrant that OfficeTools Cloud will meet your requirements, will be compatible with your computer or related equipment, or software, or that OfficeTools Cloud and its operation will be accurate, valid, reliable, authentic, current, or complete, or will continue to operate, operate without interruptions or be error-free. In addition, Abacus makes no representation, warranty, condition or covenant that the OfficeTools Cloud service and software are appropriate or available for use at any location. Accessing the OfficeTools Cloud service and software from locations where their contents are illegal is prohibited.  Those who choose to access the OfficeTools Cloud service and software from locations other than Canada do so on their own initiative and are responsible for compliance with local laws.

IN NO EVENT SHALL ABACUS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, PUNITIVE DAMAGES, EXEMPLARY DAMAGES, LOST PROFITS, LOSS OF USE OR LOSS OF DATA, WHETHER FORESEEABLE OR NOT, EVEN IF ADVISED OF THE POSSIBILITY THEREOF.  THIS LIMITATION AND EXCLUSION APPLIES IRRESPECTIVE OF THE CAUSE OF ACTION, INCLUDING BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR ANY OTHER LEGAL THEORY AND SHALL SURVIVE A FUNDAMENTAL BREACH.  IN NO EVENT WILL ABACUS’ TOTAL AGGREGATE AND CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL CLAIMS OF ANY KIND ARISING AS A RESULT OF OR RELATED TO THE SERVICES COVERED BY THESE TERMS AND CONDITIONS, OR TO ANY ACT OR OMISSION OF ABACUS, EXCEED THE AMOUNT OF SUBSCRIPTION FEES ACTUALLY PAID (IF ANY) BY YOU FOR THE SERVICE GIVING RISE TO THE CLAIM IN THE SIX MONTHS PRECEDING THE CLAIM.  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 SERVICE 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.

Abacus is not responsible for problems that may occur as a result of any incompatibility between OfficeTools Cloud and any other software or hardware.  You assume responsibility for the selection of OfficeTools Cloud to achieve your intended purposes, for making backups of your data regularly, and for choosing, maintaining and matching your hardware, operating system software and other applications software.  Abacus cannot guarantee that OfficeTools Cloud will be uninterrupted, timely, secure, virus-free, error-free or have any errors corrected.  Abacus is not responsible for any losses that you may suffer, whether foreseeable or not, as a consequence of the use or failure to function of OfficeTools Cloud, or as a result of any unauthorized access to OfficeTools Cloud or 3rd party interference with OfficeTools Cloud, or as a result of any modification to OfficeTools Cloud, or as a result of the termination of your license to access OfficeTools Cloud, including business interruption, lost business, lost billable hours, lost data, fees for third party consulting or services for configuring, customizing or troubleshooting OfficeTools Cloud, the cost of substitute software or services, or the cost of transitioning to substitute software or services.

The warranty limitations, disclaimers, and other legal protections applicable to Abacus herein may be asserted in full by its employees, officers, directors, and affiliated companies, and each are intended beneficiaries of such protections.

23. Possible Exception

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.  IN THAT EVENT, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO THIRTY (30) DAYS FROM THE DATE OF YOUR FIRST LOGIN TO OFFICETOOLS CLOUD.  THIS PROVISION GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.

24. Remedies

Abacus’ entire liability to You or any other party for any claim, demand or action arising from or related to this Agreement or your use of OfficeTools Cloud (whether in contract, warranty, tort (including negligence), product liability, patent or copyright infringement or any other theory whatsoever), including the matters set out in Section 15 above, and your exclusive remedy shall be: (a) refund of the Service Fee that You have paid for OfficeTools Cloud, for the month preceding the date You notify Abacus of any claim, provided You notify Abacus of the issue within thirty (30) days of the incident that gives rise to it; and (b) termination of this Subscription and License Agreement.  The provisions of this Section and the two Sections above allocate the risks under this Agreement between the parties, and the parties have relied on these limitations in determining whether to enter into this Agreement.

25. Indemnification

You shall indemnify and hold harmless Abacus, and its employees, officers, directors, and affiliated companies, from any and all claims, damages, losses, liabilities, costs and expenses (including the reasonable fees of lawyers and other professionals, and court fees) arising out of or in connection with your use of OfficeTools Cloud, whether direct or indirect, including data loss, business interruption, computer “viruses”, intellectual property infringement or issues arising out of communicating data over the Internet.  You shall promptly notify Abacus of any such claim.

26. Changes to this Agreement

The terms of this agreement may be changed by Abacus in its sole discretion at any time upon notice to You.

If any changes are made to this agreement by Abacus, such changes will: (a) only be applied prospectively; and (b) not be specifically directed against You but will apply to all similarly situated OfficeTools Cloud customers.

You may terminate this agreement if any change to this agreement is unacceptable to You, and such termination shall be Your sole remedy for any such changes to the Agreement.

You agree that, if You continue to use OfficeTools Cloud after Abacus notifies You of any changes to this agreement, You are thereby accepting the revised terms of this agreement.

No communication by You, whether written or oral, can change the terms of this agreement.

27. Miscellaneous

You agree that Abacus can place messages and other communications to you on the home page of OfficeTools Cloud.  You also agree that Abacus may provide you with messages by email, fax or regular mail, and that such communications do not constitute unsolicited mail or breach any “do not communicate” provisions of your local jurisdiction.

Abacus may assign this Agreement in its entirety to any purchaser of all or substantially all of its business or assets or to any subsidiary or other affiliate of Abacus.

You may not assign this agreement or transfer, export or grant a sub-license of OfficeTools Cloud or the license contained herein to any other party unless authorized by Abacus in writing.

Abacus may use third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run OfficeTools Cloud.  These vendors and partners may use, hold or transfer your data outside of Canada, and while outside of Canada your data may be subject to access by the regulatory authorities of such jurisdictions, pursuant to the law of such jurisdictions.

The failure of Abacus to enforce any provision of this agreement shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time.  No waiver of any breach of any term of this agreement shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.

Abacus may provide functionality in OfficeTools Cloud that facilitates access to third party applications or services.  Abacus is not responsible for the operation or support of any such third party applications.  Further, OfficeTools Cloud may include hyperlinks to other websites or resources.  Abacus may have no control over any applications, services, websites or information connected to these links.  You agree that Abacus is not responsible for the availability of any such external applications, services, sites or resources, and does not endorse any advertising, products or other materials on or available from such applications, services, websites or resources.  You also agree that Abacus is not liable for any loss or damage which may be incurred by you as a result of the availability of those external applications, services, websites or resources, or as a result of any reliance placed by you on anything contained at these applications, services, websites or resources.

In the event that one or more of the provisions of this Agreement is found to be illegal or unenforceable, this Agreement shall not be rendered inoperative but the remaining provisions shall continue in full force and effect.
OfficeTools Cloud has been designed to work optimally in the environment described within its documentation.  Any defects, inconsistencies or issues arising out of operating outside the parameters set forth therein may require you to pay additional technical support costs to Abacus to support and/or rectify same, if Abacus in its sole discretion chooses to do so.

Portions of OfficeTools Cloud are the copyrighted intellectual property of Microsoft.  It is agreed that the protections included herein extend equally to Microsoft as they do to Abacus and are enforceable by Microsoft.

This Agreement, including the agreements referenced herein as being incorporated by reference, is the entire agreement between You and Abacus pertaining to your right to use OfficeTools Cloud and related documentation, and supersedes all prior, collateral or contemporaneous oral or written representations or agreements regarding such subject matter.

No representations made by resellers, sales agents, marketing materials or otherwise shall apply should they in any way be in conflict with the terms of this Agreement.

“Including” where used herein shall mean “including without limitation”.

If you are acting on behalf of any unit or agency of the government of the United States of America, you agree that OfficeTools Cloud is provided with RESTRICTED RIGHTS.  Use, duplication, or disclosure by the Government of the U.S.A. is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Software Restricted Rights at 48 CFR 52.227-19 as applicable.  The software was developed exclusively at private expense, no part of it is in the public domain and is an unpublished work.  The manufacturer is Abacus Data Systems Canada, Inc. (a subsidiary of Abacus Data Systems, Inc.), 1 Yonge Street, Suite 2000 Toronto, Ontario M5E 1E5 Canada.

To the fullest extent permitted by law, if you are located in a member state of the European Union, you hereby waive all notices, acknowledgements of receipt and confirmations relative to contracting by electronic means which may be required under Articles 10(1), 10(2), 11(1) and 11(2) of EU Directive 2000/31/EC as implemented in your jurisdiction in respect of this License Agreement and your use of OfficeTools Cloud.

28. Notices

All notices to You under this agreement shall be deemed duly made if done by:

  • Appearing through the announcement function on the home page of OfficeTools Cloud; or
  • Being sent to You by email at the email address that You use for logging into OfficeTools Cloud.

All notices to Abacus under this agreement shall be deemed duly made if done by:

Certified mail or registered courier to: Abacus Data Systems Canada, Inc., Attention Chief Legal Officer, 1 Yonge Street, Suite 2000 Toronto, Ontario M5E 1E5 Canada;

or, Email to support@abacusnext.com, provided that the email is followed within 3 business days by certified mail or courier as above.

29. Disputes

This Agreement shall be governed by the laws of the State of California regardless of conflict of law provisions.

You agree that the state and federal courts located in San Diego, CA will have exclusive jurisdiction and shall be the exclusive venue in which to resolve any disputes between you and Abacus concerning this Agreement, OfficeTools Cloud.

You acknowledge that You are a sophisticated consumer on the subject of laws and their applicability and You specifically agree to these dispute resolution terms.

ADDENDUM 1

  1. Scope, Order of Precedence and Term

This Addendum shall be incorporated into the OfficeTools Cloud Terms of Service, Subscription and License Agreement.

1.1.    Except as expressly stated otherwise in this Addendum 1, in the event of any conflict between the terms of the OfficeTools Cloud Terms of Service, Subscription and License Agreement, including any policies or schedules referenced therein, and the terms of this Addendum 1 the relevant terms of this Addendum 1 shall take precedence.

  2. Definitions

2.1.    “Abacus” means Abacus Data Systems, Inc., together with the Abacus Affiliates;

2.2.    “Affiliate,” or “Affiliates” means any entity which is controlled by, controls or is in common control with Abacus, which includes Abacus Data Systems, Inc.

2.3.    “Applicable Data Protection Law” means (i) Directive 95/46/EC of October 24, 1995, as amended, on the protection of individuals with regard to the Processing of Personal Data and on the free movement of such data (‘Directive’) until such time that it is replaced by GDPR, applicable as of May 25, 2018; (ii) the GDPR; and (iii) any other data privacy or data protection law or regulation that applies to the Processing of Personal Data under Your EULA and/or Cloud Services Agreement.

2.4.    “Data Controller” means the entity which determines the purposes and means of the Processing of Personal Data.

2.5.    “Data Processor” means the entity which Processes Personal Data on behalf of the Data Controller.

2.6.    “Data Subject” “means the individual to whom Personal Data relates.

2.7.    “GDPR” means the General Data Protection Regulation (EU 2016/679) and/or any legislation which preserves or replaces it following the United Kingdom’s exit from the European Union.  To the extent that any legislation preserves or replaces the GDPR following the United Kingdom’s exit from the European Union, references to the GDPR shall be interpreted as references to the nearest equivalent provision(s) of such new legislation.

2.8.    “Personal Data” means any information relating to an identified or identifiable person that Abacus may Process on Your behalf under the OfficeTools Cloud Terms of Service, Subscription and License Agreement.

2.9.    “Processing,” “Process,” “Processes” and “Processed” mean any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.

2.10.    “Supervisory Authority” means an independent public authority which is established by an EU Member State.

2.11.    “Third Party Sub-processor” means a third-party subcontractor, other than an Abacus Affiliate, engaged by Abacus and which may Process Personal Data as set forth in Section 3.3.

2.12.    “You” means the customer entity that has executed the subscription order for OfficeTools Cloud.

Other capitalized terms have the definitions provided for them in the OfficeTools Cloud Terms of Service, Subscription and License Agreement or as otherwise specified below.

3. Controller and Processor of Personal Data and Purpose of Processing

3.1.    You are and will at all times remain the Controller of the Personal Data Processed by Abacus pursuant to the OfficeTools Cloud Terms of Service, Subscription and License Agreement.  You are responsible for compliance with Your obligations as a Controller under Applicable Data Protection Law, in particular for justification of any transmission of Personal Data to Abacus (including providing any required notices and obtaining any required consents and/or authorizations, or otherwise securing an appropriate legal basis under Applicable Data Protection Law), and for Your decisions and actions concerning the Processing of such Personal Data.

3.2.    Abacus is and will at all times remain a Processor with regard to the Personal Data provided by You to Abacus pursuant to the OfficeTools Cloud Terms of Service, Subscription and License Agreement.  Abacus is responsible for compliance with its obligations as a Processor under Applicable Data Protections Law.

3.3.    Abacus and any persons acting under the authority of Abacus, including any Abacus Affiliates and Third-Party Sub-processors as set forth in Section 7.3, will Process Personal Data solely for the purpose of (i) providing the OfficeTools Cloud Terms of Service, Subscription and License Agreement in accordance with the OfficeTools Cloud Terms of Service, Subscription and License Agreement and corresponding EULA and/or Terms and Conditions (ii) complying with Your documented written instructions in accordance with Section 5, or (iii) complying with Abacus’s regulatory obligations in accordance with Section 13.

3.4.    As the Data Controller, You warrant, represent and undertake to Abacus that You have lawful grounds for the processing of Personal Data.

4. Categories of Personal Data and Data Subjects

4.1.    In order to provide You with the Abacus software products under the OfficeTools Cloud Terms of Service, Subscription and License Agreement and depending on the services You have ordered, Abacus may Process some or all of the following categories of Personal Data: personal contact information such as name, home address, home telephone or mobile number, fax number, email address, and passwords; information concerning family, lifestyle and social circumstances including age, date of birth, marital status, number of children and name(s) of spouse and/or children; employment details including employer name, job title and function, employment history, salary and other benefits, job performance and other capabilities, education/qualification, identification numbers, social security details and business contact details; financial details; goods and services provided; unique IDs collected from mobile devices, network carriers or data providers, IP addresses, and online behavior and interest data.

4.2.    Categories of Data Subjects whose Personal Data may be Processed in order to perform the obligations under the OfficeTools Cloud Terms of Service, Subscription and License Agreement may include, among others, Your representatives and end users, such as Your employees, job applicants, contractors, collaborators, partners, suppliers, customers and clients.

4.3.    Additional categories of Personal Data and/or Data Subjects may be described in the OfficeTools Cloud Terms of Service, Subscription and License Agreement.  Unless otherwise specified in the OfficeTools Cloud Terms of Service, Subscription and License Agreement, your content may not include any sensitive or special personal data that imposes specific data security or data protection obligations on Abacus in addition to or different from those specified in the OfficeTools Cloud Terms of Service, Subscription and License Agreement.

5. Processing of Personal Data

5.1.    Abacus will Process Personal Data on Your written instructions as specified in the OfficeTools Cloud Terms of Service, Subscription and License Agreement and this Addendum 1, including instructions regarding data transfers as set forth in Section 7.

5.2.    You may provide additional instructions in writing to Abacus with regard to Processing of Personal Data in accordance with Applicable Data Protection Law.  Abacus will comply with all such instructions to the extent necessary for Abacus to (i) comply with its Processor obligations under Applicable Data Protection Law; or (ii) assist You to comply with Your Controller obligations under Applicable Data Protection Law relevant to Your use of the OfficeTools Cloud Terms of Service, Subscription and License Agreement, including assistance with notifying Personal Data breaches as set forth in Section 11, Data Subject requests as set forth in Section 6, and Data Protection Impact Assessments (DPIAs).

5.3.    To the extent required by Applicable Data Protection Law, Abacus will immediately inform You if, in its opinion, Your instruction infringes Applicable Data Protection Law.  You acknowledge and agree that Abacus is not responsible for performing legal research and/or for providing legal advice to You.

5.4.    Without prejudice to Abacus’s obligations under this Section 5, the parties will negotiate in good faith with respect to any charges or fees that may be incurred by Abacus to comply with instructions with regard to the Processing of Personal Data that require the use of resources different from or in addition to those required for the provision of the OfficeTools Cloud Terms of Service, Subscription and License Agreement.

6. Rights of Data Subjects

6.1.    Abacus will grant You electronic access to Your cloud services environment that holds Personal Data to enable You to respond to requests from Data Subjects to exercise their rights under Applicable Data Protection Law, including requests to access, delete or erase, restrict, rectify, receive and transmit, block access to or object to Processing of specific Personal Data or sets of Personal Data.

6.2.    To the extent such electronic access is not available to You, You can submit a “service request” via https://www.abacusnext.com/support, or other applicable primary support tool provided for the Services, and provide detailed written instructions to Abacus, including the Personal Data necessary to identify the Data Subject, on how to assist with such Data Subject requests in relation to Personal Data held in Your cloud services environment.  Abacus will promptly follow such instructions.  If applicable, the parties will negotiate in good faith with respect to any charges or fees that may be incurred by Abacus to comply with instructions that require the use of resources different from or in addition to those required for the provision of the OfficeTools Cloud Terms of Service, Subscription and License Agreement.

6.3.    If Abacus directly receives any Data Subject requests regarding Personal Data, it will promptly pass on such requests to You without responding to the Data Subject if the Data Subject identifies You as the Data Controller.  If the Data Subject does not identify You, Abacus will instruct the Data Subject to contact the entity responsible for collecting their Personal Data.

7. Personal Data Transfers

7.1.    Personal Data held in Your cloud services environment will be hosted in the United States or Canada. Abacus will not migrate Your cloud services environment to a different data center region without Your prior written authorization.

7.2.    Without prejudice to Section 7.1, Abacus may access and Process Personal Data on a global basis as necessary to perform the OfficeTools Cloud Terms of Service, Subscription and License Agreement, including for IT security purposes, maintenance and performance of the obligations set forth in the OfficeTools Cloud Terms of Service, Subscription and License Agreement and related infrastructure, technical support and change management.

7.3.    To the extent such global access involves a transfer of Personal Data originating from the European Economic Area (“EEA”) or Switzerland to Abacus Affiliates or Third-Party Sub-processors located in countries outside the EEA or Switzerland that have not received a binding adequacy decision by the European Commission or by a competent national EEA data protection authority, such transfers are subject to EU-U.S. Privacy Shield Framework and Swiss-U.S. Privacy Shield Framework.

8. Abacus Affiliates and Third Party Sub-processors

8.1.    Subject to the terms and restrictions specified in Sections 3.3, 7 and 7.3, You agree that Abacus may engage Abacus Affiliates and Third Party Sub-processors to assist in the performance of any obligations set forth in the OfficeTools Cloud Terms of Service, Subscription and License Agreement.

8.2.    Within fourteen (14) calendar days of Abacus providing such notice to You, You may object to the intended involvement of a Third Party Sub-processor or Abacus Affiliate in the performance of obligations pursuant to the OfficeTools Cloud Terms of Service, Subscription and License Agreement, providing objective justifiable grounds related to the ability of such Third Party Sub-processor or Abacus Affiliate to adequately protect Personal Data in accordance with Applicable Data Protection Law in writing by submitting a “service request” via https://www.abacusnext.com/support, or other applicable primary support tool provided for the Services.  In the event Your objection is justified, You and Abacus will work together in good faith to find a mutually acceptable resolution to address such objection, including but not limited to reviewing additional documentation supporting the Third Party Sub-processors’ or Abacus Affiliate’s compliance with this Addendum 1 and Applicable Data Protection Law, or delivering products and services contemplated by the OfficeTools Cloud Terms of Service, Subscription and License Agreement without the involvement of such Third Party Sub-processor.  To the extent You and Abacus do not reach a mutually acceptable resolution within a reasonable timeframe, You shall have the right to terminate the relevant services (i) upon serving prior notice in accordance with the terms of the OfficeTools Cloud Terms of Service, Subscription and License Agreement; (ii) without liability to You and Abacus and (iii) without relieving You from Your payment obligations under the OfficeTools Cloud Terms of Service, Subscription and License Agreement up to the date of termination.

8.3.    The Abacus Affiliates and Third Party Sub-processors are required to abide by the same level of data protection and security as Abacus under this Addendum 1 as applicable to their Processing of Personal Data.  You may request that Abacus audit a Third Party Sub-processor or provide confirmation that such an audit has occurred (or, where available, obtain or assist customer in obtaining a third-party audit report concerning the Third Party Sub-processor’s operations) to verify compliance with such obligations.  You will also be entitled, upon written request, to receive copies of the relevant privacy and security terms of Abacus’s agreement with any Third Party Sub-processors and Abacus Affiliates that may Process Personal Data.

8.4.    Abacus remains responsible at all times for the performance of the Abacus Affiliates’ and Third Party Sub-processors’ obligations in compliance with the terms of this Addendum 1 and Applicable Data Protection Law.

9. Technical and Organizational Measures, and Confidentiality of Processing

9.1.    Abacus has implemented and will maintain appropriate technical and organizational security measures for the Processing of Personal Data.  These measures take into account the nature, scope and purposes of Processing as specified in this Addendum 1, and are intended to protect Personal Data against the risks inherent to the Processing of Personal Data in the performance of the obligations set forth in the OfficeTools Cloud Terms of Service, Subscription and License Agreement, in particular risks from accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data transmitted, stored or otherwise Processed.

9.2.    In particular, Abacus has implemented the physical access, system access, data access, transmission and encryption, input, data backup, data segregation and security oversight, enforcement and other security controls and measures specified in the OfficeTools Cloud Terms of Service, Subscription and License Agreement.  You are advised to carefully review the OfficeTools Cloud Terms of Service, Subscription and License Agreement to understand which specific security measures and practices apply to the particular Cloud Services ordered by You, and to ensure that these measures and practices are appropriate for the Processing of Personal Data pursuant to this Addendum 1.

9.3.    All Abacus and Abacus Affiliate staff, as well as any Third Party Sub-processors that may have access to Personal Data are subject to appropriate confidentiality arrangements.

10. Audit Rights and Cooperation with You and Your Supervisory Authorities

10.1.    You may audit Abacus’s compliance with its obligations under this Addendum 1 up to once per year.  In addition, to the extent required by Applicable Data Protection Law, including where mandated by Your Supervisory Authority, You or Your Supervisory Authority may perform more frequent audits, including inspections of the Cloud Service data center facility that Processes Personal Data.  Abacus will contribute to such audits by providing You or Your Supervisory Authority with the information and assistance reasonably necessary to conduct the audit, including any relevant records of Processing activities applicable to the OfficeTools Cloud Terms of Service, Subscription and License Agreement ordered by You.

10.2.    If a third party is to conduct the audit, the third party must be mutually agreed to by You and Abacus (except if such Third Party is a competent Supervisory Authority).  Abacus will not unreasonably withhold its consent to a third party auditor requested by You. The third party must execute a written confidentiality agreement acceptable to Abacus or otherwise be bound by a statutory confidentiality obligation before conducting the audit.

10.3.    To request an audit, You must submit a detailed proposed audit plan to Abacus at least two weeks in advance of the proposed audit date.  The proposed audit plan must describe the proposed scope, duration, and start date of the audit. Abacus will review the proposed audit plan and provide You with any concerns or questions (for example, any request for information that could compromise Abacus security, privacy, employment or other relevant policies). Abacus will work cooperatively with You to agree on a final audit plan.

10.4.    If the requested audit scope is addressed in a SSAE 16/ISAE 3402 Type 2, ISO, NIST, PCI DSS, HIPAA or similar audit report issued by a qualified third party auditor within the prior twelve months and Abacus provides such report to You confirming there are no known material changes in the controls audited, You agree to accept the findings presented in the third party audit report in lieu of requesting an audit of the same controls covered by the report.

10.5.    The audit must be conducted during regular business hours at the applicable facility, subject to the agreed final audit plan and Abacus’s health and safety or other relevant policies, and may not unreasonably interfere with Abacus business activities.

10.6.    You will provide Abacus any audit reports generated in connection with any audit under this Section 10, unless prohibited by Applicable Data Protection Law or otherwise instructed by a Supervisory Authority. You may use the audit reports only for the purposes of meeting Your regulatory audit requirements and/or confirming compliance with the requirements of this Addendum 1.  The audit reports shall be and shall remain the Confidential Information of the parties under the terms of the OfficeTools Cloud Terms of Service, Subscription and License Agreement.

10.7.    All audits are at Your expense.  The parties will negotiate in good faith with respect to any charges or fees that may be incurred by Abacus to provide assistance with an audit that requires the use of resources different from or in addition to those required for the provision of services associated with the OfficeTools Cloud Terms of Service, Subscription and License Agreement.

11. Incident Management and Personal Data Breach Notification

11.1.    Abacus promptly evaluates and responds to incidents that create suspicion of or indicate unauthorized access to or Processing of Personal Data (“Incident”).  All Abacus and Abacus Affiliates staff that have access to or Process Personal Data are instructed on responding to Incidents, including prompt internal reporting, escalation procedures, and chain of custody practices to secure relevant evidence.  Abacus’s agreements with Third Party Sub-processors contain similar Incident reporting obligations.

11.2.    In order to address an Incident, Abacus defines escalation paths and response teams involving internal functions such as Information Security and Legal.  The goal of Abacus’s Incident response will be to restore the confidentiality, integrity, and availability of Your cloud services environment and the Personal Data that may be contained therein, and to establish root causes and remediation steps.  Depending on the nature and scope of the Incident, Abacus may also involve and work with You and outside law enforcement to respond to the Incident.

11.3.    To the extent Abacus becomes aware and determines that an Incident qualifies as a breach of security leading to the misappropriation or accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise Processed on Abacus systems or cloud services environment that compromises the security, confidentiality or integrity of such Personal Data (“Personal Data Breach”), Abacus will inform You of such Personal Data Breach without undue delay but at the latest within 24 hours.

11.4.    Abacus will take reasonable measures designed to identify the root cause(s) of the Personal Data Breach, mitigate any possible adverse effects and prevent a recurrence. As information regarding the Personal Data Breach is collected or otherwise reasonably becomes available to Abacus and to the extent permitted by law, Abacus will provide You with (i) a description of the nature and reasonably anticipated consequences of the Personal Data Breach; (ii) the measures taken to mitigate any possible adverse effects and prevent a recurrence; (iii) where possible, the categories of Personal Data and Data Subjects including an approximate number of Personal Data records and Data Subjects that were the subject of the Personal Data Breach; and (iv) other information concerning the Personal Data Breach reasonably known or available to Abacus that You may be required to disclose to a Supervisory Authority or affected Data Subject(s).

11.5.    Unless otherwise required under Applicable Data Protection Law, the parties agree to coordinate in good faith on developing the content of any related public statements or any required notices for the affected Data Subjects and/or notices to the relevant Supervisory Authorities.

12. Return and Deletion of Personal Data upon Termination of the OfficeTools Cloud Terms of Service, Subscription and License Agreement or Your Cloud Services Agreement

12.1.    Following termination of the services covered by the OfficeTools Cloud Terms of Service, Subscription and License Agreement, Abacus will return or otherwise make available for retrieval Your Personal Data then available in Your cloud services environment, unless otherwise expressly stated in the OfficeTools Cloud Terms of Service, Subscription and License Agreement.  For cloud services for which no data retrieval functionality is provided by Abacus as part of The OfficeTools Cloud Terms of Service, Subscription and License Agreement, You are advised to take appropriate action to back up or otherwise store separately any Personal Data while the cloud services environment is still active prior to termination.

12.2.    Upon termination of the services covered by the OfficeTools Cloud Terms of Service, Subscription and License Agreement or upon expiry of the retrieval period following termination of the services covered by the OfficeTools Cloud Terms of Service, Subscription and License Agreement (if available), Abacus will promptly delete all copies of Personal Data from Your cloud services environment by rendering such Personal Data unrecoverable, except as may be required by law.  Abacus’s data deletion practices are described in more detail in the OfficeTools Cloud Terms of Service, Subscription and License Agreement.

13. Legally Required Disclosure Requests

13.1.    If Abacus receives any subpoena, judicial, administrative or arbitral order of an executive or administrative agency, regulatory agency, or other governmental authority which relates to the Processing of Personal Data (“Disclosure Request”), it will promptly pass on such Disclosure Request to You without responding to it, unless otherwise required by applicable law (including to provide an acknowledgement of receipt to the authority that made the Disclosure Request).

13.2.    At Your request, Abacus will provide You with reasonable information in its possession that may be responsive to the Disclosure Request and any assistance reasonably required for You to respond to the Disclosure Request in a timely manner.

14. Contact

14.1.    If you have any questions or concerns regarding the terms and conditions set forth in this Addendum 1, you may write to us at compliance@abacusnext.com or by mail to:

Attn: Sr. Cyber Security & Compliance Engineer
AbacusNext
4850 Eastgate Mall
San Diego, CA 92121