Your use of TaxExact’s services, including the software and services (the “Services”) available through TaxExact’s website and/or mobile applications (together, the “Site”) is governed by these terms of service (the “Terms” or the “Agreement”), which is a binding contract between you (“you” or the “Customer”) and TaxExact, Inc., a New York Corporation (“we”, “us”, or “TaxExact”). Please carefully read the Terms before registering an account or using the Services. In order to use the Services, you must first agree to these Terms. If you are registering for or using the Services on behalf of an organization, you are agreeing to these Terms for that organization and promising that you have the authority to bind that organization to these Terms. In that case, “Customer”, “you” and “your” will also refer to that organization, wherever possible. IF YOU SIGN UP FOR TAXEXACT SERVICES USING AN EMAIL ADDRESS FROM YOUR EMPLOYER OR ANOTHER ORGANIZATION, THEN (A) YOU WILL BE DEEMED AUTHORIZED TO REPRESENT THE ORGANIZATION, AND (B) YOUR ACCEPTANCE OF THESE TERMS WILL BIND THE ORGANIZATION TO THESE TERMS.
These Terms are effective as of the date you first click “I agree” (or similar button or checkbox) or use or access the Services, whichever is earlier (the “Effective Date”). These Terms do not have to be signed in order to be binding.
1. SCOPE; LICENSE AND USAGE RESTRICTIONS
TaxExact grants Customer a nonexclusive, royalty-free, nontransferable right to access and use the Services through the Site solely for its own internal use and subject to the conditions in these Terms.
The Services may not be used in the ways outlined below, and Customer agrees not to use the Services to:
(i) modify, copy, display, republish or create derivative works based on the Services or the underlying software;
(ii) modify, copy or create derivative works of the documentation available within the Services;
(iii) reverse engineer the Services or the underlying software;
(iv) access the Services in order to build a competitive product or service, or copy any ideas, features, functions or graphics of the Services;
(v) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party, other than to Users or as otherwise contemplated by this Agreement;
(vi) use the Services to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third-party privacy rights;
(vii) upload to the Services or use the Services to send or store viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs;
(viii) interfere with or disrupt the integrity or performance of the Services or the data contained therein;
(viii) attempt to gain unauthorized access to the Services or its related systems or networks; or
(ix) export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with these Terms without first complying with all applicable export control laws and regulations that may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction you operate or do business, and shall not cause TaxExact to violate the same.
Customer is responsible for obtaining access to the Services, including all equipment and Internet service necessary to access the Services.
2. FEES & PAYMENT TERMS
Customer agrees to pay all fees and setup/configure charges for the Services and subscriptions ordered through the Site. All fees are due and payable at the time of ordering and are non-refundable.
3. TERM & TERMINATION
a. Term. This Agreement will commence on the Effective Date and will continue for a twelve (12) month term, unless terminated according to the provisions of this Agreement. This Agreement automatically renews for additional one (1) year terms unless either party has provided notice to the other of its intent not to renew at least sixty (60) days prior to expiration of the then-current term.
b. For Cause Termination. Either party may immediately terminate (or at such party’s election, suspend) this Agreement if the other party breaches or materially fails to comply with the requirements set forth in this Agreement and fails to cure or correct the breach within thirty (30) days after notice from the other party.
c. Suspension of Services. TaxExact may immediately suspend or delay the Services or terminate this Agreement without notice if Customer defaults on any payment obligations set forth herein.
Each party (the “Receiving Party”) undertakes to retain in confidence all Confidential Information (as defined below); provided that each party may disclose the terms and conditions of this Agreement to its immediate legal and financial consultants in the ordinary course of its business. Neither party shall use any Confidential Information with respect to which it is the Receiving Party for any purpose other than to carry out the activities contemplated by this Agreement. Each party agrees to use commercially reasonable efforts to protect Confidential Information of the other party, and in any event, to take precautions at least as great as those taken to protect its own confidential information of a similar nature. Each party shall also notify the other promptly in writing in the event such party learns of any unauthorized use or disclosure of any Confidential Information that it has received from the other party, and will cooperate in good faith to remedy such occurrence to the extent reasonably possible. The restrictions set forth in this paragraph shall not apply to any information that: (i) was known by the Receiving Party without obligation of confidentiality prior to disclosure thereof by the other party; (ii) was in or entered the public domain through no fault of the Receiving Party; (iii) is disclosed to the Receiving Party by a third party legally entitled to make such disclosure without violation of any obligation of confidentiality; (iv) is required to be disclosed by applicable laws or regulations (but in such event, only to the extent required to be disclosed); or (v) is independently developed by the Receiving Party without reference to any Confidential Information of the other party. Upon request of the other party, each party shall return to the other all materials, in any medium, which contain or reveal all or any part of any Confidential Information of the other party. Each party acknowledges that breach of this section by such party would result in irreparable harm to the other party, for which money damages would be an insufficient remedy, and therefore that the other party shall be entitled to seek injunctive relief to enforce the provisions of this section.
“Confidential Information” shall mean (a) the terms of this Agreement, (b) information relating to designated carrier Transactions, (c) other information generated or received in connection with the Services, (d) know-how of the other party disclosed or acquired by the Receiving Party pursuant to or in connection with this Agreement which is either designated as proprietary and/or confidential or, by the nature of the circumstances surrounding disclosure, ought in good faith to be treated as proprietary and/or confidential, and (e) all other non-public information. Confidential Information includes, but is not limited to documentation, customer lists, marketing plans, financial and technical information.
As between Customer and TaxExact, Customer will retain sole and exclusive ownership of all Customer Data. “Customer Data” means data supplied by Customer or Customer’s end users. TaxExact will operate the Service and provide any other services under this Agreement in accordance with TaxExact’s then-current security policies and practices, which will take precedence over any comparable or conflicting terms in the Agreement, any order form, any Customer purchase order or any other terms or documents not signed by both parties. For the avoidance of any doubt, the parties agree that TaxExact will own any anonymized data used or generated during the term of this Agreement, including such data derived from Customer Data.
Each party hereby represents that: (i) it has the full right, power, legal capacity and authority to enter into this Agreement and to carry out the terms and conditions hereof without causing a conflict with its obligations to third parties; (ii) it owns or has obtained all rights sufficient to fully perform its obligations hereunder; and (iii) it shall comply with all applicable laws, rules and regulations in its performance of this Agreement.
We may add, modify or discontinue any feature, functionality or any other tool, within the Services, at our own discretion and without further notice, however, if we make any material adverse change in the core functionality of the Services, then we will provide notice as appropriate under the circumstances, e.g., by displaying notice within the Services or by sending you an email.
7. WARRANTY DISCLAIMER & LIABILITY
Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH ABOVE AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, TAXEXACT MAKES NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICES, TRANSACTIONS AND/OR SOFTWARE, AND ALL SUCH WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR PARTICULAR PURPOSE ARE HEREBY EXPRESSLY DISCLAIMED BY TAXEXACT. CUSTOMER ACKNOWLEDGES THAT TAXEXACT HAS NOT REPRESENTED OR WARRANTED THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY OR COMPROMISE OF THE SECURITY SYSTEMS RELATED TO THE SERVICE.
Limitations on Liability. EXCEPT FOR THE CASE OF NON-PAYMENT OF THE FEES DUE HEREUNDER BY CUSTOMER AND ANY IMPLEMENTATION FEE, IN NO EVENT WILL EITHER PARTY’S LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE FEES PAID TO TAXEXACT BY CUSTOMER DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO THE ALLEGED CLAIM. IN ADDITION, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY (INCLUDING NEGLIGENCE), WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED BY THE OTHER PARTY OR ANY THIRD PARTY OF THE POSSIBILITY OF SUCH DAMAGE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Indemnification. Each party will indemnify, defend and hold harmless the other party, its past, present, and future officers, directors, agents and employees, from and against any proven damages for claims, losses, demands, liabilities, penalties, costs and expenses (including reasonable attorneys’ fees), either arising out of or relating to a material misrepresentation or breach of this Agreement.
8. INTELLECTUAL PROPERTY
Ownership. TaxExact is, and shall remain, the licensor or the owner including all ownership rights and all intellectual property rights of the Services (including any derivatives or customizations thereof), TaxExact Marks, TaxExact Confidential Information, technology, software, source code and any related documentation, including without limitation, all copyright, trade secret, patent, trademarks and other intellectual property rights therein, including any derivative works made during the Term or thereafter, as well as any anonymized data used or generated during the term of this Agreement (“TaxExact Intellectual Property”). No property or ownership right or interest in the TaxExact Intellectual Property or any part thereof is granted to Customer by virtue of this Agreement, the rights granted hereunder to Customer being solely contractual in nature. Customer hereby assigns to TaxExact all of its right, title and interest in any such TaxExact Intellectual Property. Except as provided herein, Customer shall not sublicense, distribute, sell, assign, transfer, lease, rent, disclose, or provide access to the TaxExact Intellectual Property to any third party. In no event shall Customer use or access the TaxExact Intellectual Property except as permitted hereunder (e.g. use of the Services).
Trademarks. Customer hereby grants to TaxExact a non-exclusive, non-transferable, royalty-free license to use, reproduce, distribute and display the Customer marks during the Term and solely in connection with the performance of the Services under this Agreement. TaxExact agrees that as between the parties all uses of the Customer trademarks, including the goodwill and reputation associated therewith will inure to the benefit of Customer.
9. MISCELLANEOUS AND INTERPRETATION
a. Severability. In the event any provision of this Agreement is unenforceable or invalid such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and in such event, such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
b. Notice. Except as otherwise provided for in the Agreement, any notice or demand, with respect to this Agreement must be in writing and shall be effective on the date received only if it is sent by a courier service that confirms delivery in writing, or if sent by certified or registered mail, postage prepaid, return receipt requested properly addressed to the other party. Notwithstanding the foregoing, it is expressly understood that TaxExact may send Customer notices of material issues, important instructions, policy updates and changes as well as pricing changes electronically by e-mail and Customer accepts notices provided in this manner. Customer hereby expressly accepts notice by e-mail and expressly waives all claims or defenses that may be asserted as a result of receiving notice by e-mail.
c. Force Majeure. Neither party shall be responsible for any delays or inability to perform any of its obligations under this Agreement due to any Act of God, fire, casualty, flood, earthquake, war, strike, epidemic, destruction of production facilities, riot, insurrection, acts of terrorism, or any other cause beyond the reasonable control of such party.
d. Governing Law; Choice of Forum; Consent to Jurisdiction. Notwithstanding the conflict of laws principles of any state or other jurisdiction to the contrary, the laws of the State of New York shall govern the validity, performance, enforcement, interpretation and any other aspect of this Agreement. Any proceeding to enforce, interpret, challenge the validity of or recover for the breach of any provision of this Agreement shall be filed exclusively in the state or federal courts located in New York, and the parties hereto expressly waive any and all objections to personal jurisdiction, service of process or venue in connection therewith.
e. Waiver. No waiver of any condition, or of the breach of any provision of this Agreement, in any one or more instances, shall be deemed to be a further or continuing waiver of such condition or breach. Delay or failure to exercise any right or remedy shall not be deemed the waiver of that right or remedy.
f. Breach and Remedy. Nothing contained herein shall limit the remedies (which are to be treated as cumulative) available to a non-breaching party in the event of a material breach of this Agreement.
g. Headings. The headings appearing in this Agreement are non-material and strictly for reference purposes only.
h. Assignment. Neither party may assign this Agreement or any rights or obligations under this Agreement in whole or in part without the prior written consent of the other party. Any attempted assignment in violation of the preceding sentence will be void. This Agreement will bind and inure to the benefit of the respective successors and permitted assigns of the parties.
i. Entire Agreement and Modification. The terms in this Agreement constitute the entire Agreement between TaxExact and Customer regarding its subject matter and its terms supersede any prior or simultaneous Agreement or terms, whether written or oral. Except as otherwise provided for herein, any waiver, modification, or amendment of any provision of this Agreement will be effective only if in writing, signed, and acknowledged by the parties herein. In the event of any conflict or inconsistency between the terms and conditions of this Agreement and any terms or conditions set forth in any purchase order, statement of work, addendum, exhibit, or other document relating to the transactions contemplated by this Agreement, the terms and conditions set forth in this Agreement shall prevail.