1. Content of Software; Grant of Subscription
1.2.TPcbc Service is a cloud-based software solution to be used by users to ease, automate, the XML conversion process of compliant OECD Country-by-Country Report (“CbCR”) templates provided by Service Provider. TPcbc Service’s key features include a.o.:
- CBC Excel template
- Template validation
- XML conversion
- Download converted XML
1.4.Without prejudice to 1.5 below, the Subscription is granted for Subscriber’s internal use in execution of its normal daily business and is intended to be used by the Subscriber’s officers, directors, employees, contractors, consultants, agents and other persons that need access to and/or use of TPcbc Service, to fulfil their activities relating to the Subscriber’s normal daily business, e.g. clients, auditors.
2. License Grant and Right Of Use; Terms
2.1 License Grant. Subject to all limitations and restrictions contained herein Service Provider grants Subscriber and its Affiliates a term subscription, software as a service (‘SaaS’), non-exclusive, and non-transferable right to access, use and operate the object code form of the Application (and its updates) or any aspect of it (and use its Documentation) (“Use”) and solely to perform those functions described in the Documentation.
2.2. Use. Subscriber and its Affiliates will have a limited right and subscription to use the Application solely for its business purposes, to perform the functions described in the Software and Documentation. Subscriber shall not allow any website that is not fully owned by Subscriber to frame, syndicate, distribute, replicate, or copy any portion of Subscriber’s web site that provides direct or indirect access to the Application.
2.3 Client use. Subscriber is not allowed to sub-license the Application to its clients and / or allow Clients to use Subscriber’s Application for own reporting purposes.
2.4. License Type. Subscriber shall ensure that the number of the metrics is equal to or less than the number of metrics for which the Subscriber and its Affiliates have subscribed.
2.6. Authorized Users. “Authorized Users” will only consist of: (i) officers, directors, employees, contractors, consultants, agents, and other representatives of the Subscriber and/or its Affiliates and/or their Clients, and (ii) subject to the NDA, third party contractors of Subscriber who do not compete with Service Provider (“Permitted Contractors”).
2.7. Subscriber grants to Service Provider a non-exclusive, royalty-free right to access, use, perform, and display Subscriber data (e.g. user email addresses, URL containing the Subscriber’s name, Subscriber’s client base etc.) as is necessary for Service Provider to ensure the proper use of the Application by the Subscriber or its Affiliates.
2.8. Third Party Software. The Subscriber acknowledges that the Software may contain third party software. The Service Provider guarantees that the use of the Software does not infringe any third-party intellectual or industrial property rights. If the Service Provider supplies third party software which are subject to any third party intellectual or industrial property rights, the Service Provider grants to the Subscriber and its Affiliates a right of use. The Service Provider shall indemnify the Subscriber and its Affiliates against any third-party claim arising from or connected with any infringement of the said rights and shall compensate the Subscriber and its Affiliates in respect of all consequential loss and costs.
2.9 Output Materials. ”Output Materials” means any information, document or file which is generated by the Software as a result of the use of the Application by the Subscriber and/or its Affiliates and/or their Authorized Users. The Service Provider hereby grants the Subscriber and its Affiliates the right to use, copy, process, modify, transfer, or otherwise use the Output Materials to assess, discuss and/or fulfil the requirements under local laws.
2.12 Data localization. For the avoidance of doubt all data, including personal data, in relation to the Subscriber physically resides in the EMEA region.
3. Delivery / Access of Software to Subscriber
3.3. Service Provider will organise the deployment of a dedicated TPcbc environment for Subscriber and its Affiliates.
3.4. Subscriber and its Affiliates will have access to the TPcbc Service as indicated in article 1.2. above.
4. Intellectual Property and Proprietary Rights / Restrictions
4.1. The Service Provider represents to the Subscriber it has full ownership or all licences necessary to use the intellectual property rights to be used by the Service Provider in connection the Software.
4.4. Save for its Affiliates, auditors and outside tax service providers, Subscriber agrees not to disclose, provide, or otherwise make available such trade secrets and/or copyrighted material in any form to any party without the prior written consent of Service Provider. The Subscriber agrees to implement reasonable security measures to protect such trade secrets and/or copyrighted material. Title to the TPcbc Service, including any supporting documentation, shall remain solely with Service Provider.
4.6. Subscriber shall not remove, obscure or modify any copyright or other notices included in the TPcbc Service.
4.7. Marks and Publicity. Service Provider and Subscriber or its Affiliates trademarks, trade names, service marks, and logos, whether or not registered (“Marks”), are the sole and exclusive property of the respective owning party, which owns all right, title and interest therein.
5. Subscription Fee and Additional Costs
5.1. Subscriber shall be granted a Subscription to use the TPcbc Service ((as a service)) during a term for a Subscription fee as per our fee schedule in the “Customer Order” section, the “Subscription Fee”.
5.2. The Subscription Fee does not include a training for the use of TPcbc Service. Trainings are offered (online only) at € 250 (EUR two hundred fifty) per training event. There is no limit to the number of trainees.
5.3. The following support is included:
- Within 24 hours Service Provider will research, diagnose, troubleshoot, identify solutions and report back to Subscribers the timing of resolution, which under no circumstances will be in excess of (5) (five) business days since the issue was reported;
- Requests for new functionalities or features, Service Provider will follow standard procedures for proper escalation to the appropriate internal teams, which means posting a request through Service Provider’s service desk to which Subscriber and its Affiliates will receive access together with the deployment of the Application;
- Unlimited technical support shall be provided during regular office hours (i.e., between 9 AM and 5 PM Central European Time zone);
- Any requests from the Subscriber or its Affiliates shall be made through Service Provider’s service desk (email@example.com / tel.nr. +31 (0)73 8000030) to which Subscriber and its Affiliates will receive access together with the deployment of the Application.
5.4. Any required additional on-premise support and/or consultancy will be invoiced monthly at a fee of Euro 125 (Euro one hundred and twenty-five) per hour.
6. Obligations of Service Provider
6.2. Service Provider shall provide the TPcbc Service related help and support to Subscriber and its Affiliates as defined in Article 5.4 above, and software maintenance services as defined per Article 9 below.
6.4. Per request of Subscriber, Service Provider shall immediately provide Subscriber with the most recent information and documentation pertaining to the performance of the TPcbc Service and Service Provider’s IT security status.
6.6. Service Provider represents to the Subscriber it has subscribed relevant insurance policies with insurers of good repute covering appropriately the business of the Service Provider, and confirms that it will make available this certificate to the Subscriber upon requests.
6.7. Service Provider has a duty to give advice to the Subscriber. As part of its general duty to give advice, the Service Provider must, in particular, ensure that it:
(i) informs, advices and warns the Subscriber on the nature, the conditions of performance and any useful precaution concerning the TPcbc Service, and more particularly with regard to safety;
(iv) advices the Subscriber in the event that the Subscriber would issue additional or new requests.
7. Obligations of Subscriber
7.2. Subscriber shall use reasonable efforts to inform its employees and third parties that will use the Application through the Subscriber of the restrictions on the use of the TPcbc Service. In the event of any unauthorised use of the TPcbc Service by an Authorized User of the Subscriber or its Affiliate, Service Provider may, after a notice has been addressed to the Subscriber and stayed without action for a period of ten (10) working days, to suspend access to the Application to the concerned Authorized User for the use of the TPcbc Service. Service Provider shall not take any legal steps in this regard without first providing reasonable notice to Subscriber (in no event less than ten (10) working days) and cooperating with Subscriber to avoid recurrence of any unauthorised use.
7.3. Where access to the TPcbc Service is to be controlled using passwords, Subscriber shall issue log-on identification numbers and passwords to each Authorized User and use reasonable efforts to ensure that the users do not divulge their identification numbers and passwords to any third party, without informing them of the restrictions on the use of the TPcbc Service.
7.4. The Subscriber may, at its absolute discretion, support Service Provider by acting as a reference towards (potential new) subscriber of Service Provider. The Subscriber may, at its absolute discretion, support Service Provider by acting as a reference towards (potential new) subscriber of Service Provider. Service Provider is allowed to display Subscriber’s brand and/or name on its tax-model.com website.
7.5. The Subscriber shall be obliged to use a market standard anti-virus program that will automatically check the data inputted by its Authorized Users for viruses or other harmful components. In addition, the Subscriber itself shall be responsible for the entry and the maintenance of its data.
8. Warranty of Title
8.2. In the event of any breach or threatened breach of the preceding representation and warranty, Subscriber’s remedy is to require Service Provider to either:
- Procure, at Service Provider’s expense, the right to use the TPcbc Service; or
9. Warranty of Functionality
9.1. Service Provider warrants that the TPcbc Service shall perform in all material respects according to Service Provider’s specifications concerning the TPcbc Service as outlined in Article 1.2 above, if and when used with the most up to date and commonly known Internet browser environments. Service Provider indemnifies Subscriber and its Affiliates against any claim of a third party in connection with TPcbc Service and any damages incurred by the Subscriber or its Affiliates following TPcbc Service use including any third-party claim arising from or connected with any infringement of third-party intellectual or industrial property rights and shall compensate the Subscriber in respect of all consequential loss and costs.
9.2. Service Provider warrants that the TPcbc Service is secure and that it has implemented all security measures as set out in the Information Security Management Annex (“Security Annex”).
9.3. The Service Provider warrants that the Application does not contain any malicious code, program, or other internal component (e.g. computer virus, computer worm, computer time bomb, or similar component), which could damage, destroy, or alter the Application, or which could reveal, damage, destroy, or alter any data or other information accessed through or processed by the Application in any manner, or could provide unauthorized access to, a computer system or network or other device on which such code is stored or installed.
10. Business continuity.
10.2. The Service Provider shall implement and maintain in effect at all relevant times a comprehensive Business Continuity Plan that is commercially reasonable and complies with applicable laws, rules and regulations, at no additional cost to Subscriber. The Service Provider will provide an executive summary of such plan upon reasonable request of Subscriber.
10.3. The Service Provider shall test the adequacy of the Business Continuity Plan on a regular basis, and in any event at least once every twelve (12) months.
10.4. No changes implemented by the Service Provider shall degrade the quality of the Business Continuity Plan in a manner which has a material adverse impact on the TPcbc Service.
11. Software Maintenance
11.2. Service Provider is obliged to update the Software to the extent necessary to keep it up to date with repository and / or reporting related changes in connection to the local laws. Service Provider is by no means obliged to provide system updates upon the request of Subscriber.
11.3. The delivery and access to the system updates will be based on the same terms as it is defined in Article 3. above.
12.2. Complaints concerning the invoice must be made in writing within thirty (30) days from the date of the invoice. Invoices will be sent by electronic delivery unless requested otherwise by the Subscriber.
12.3. In the event, any overdue amount owed by Subscriber is not paid following one reminder being send to the Subscriber and ten (10) days written notice from Service Provider, then in addition to any other amount due, Service Provider may impose and Subscriber shall pay a late payment charge at the legal late-payment interest rate applicable to commercial transactions, on any overdue amount.
12.4. The Subscription Fee, service fees, and other amounts required to be paid hereunder do not include any amount for VAT. Subscriber shall reimburse Service Provider and hold Service Provider, and shall cause it Affiliates to reimburse the Service Provider and hold Service Provider, harmless for all sales, use, VAT, excise, property or other taxes or levies which Service Provider is legally required to collect from the Subscriber and remit to applicable tax authorities. This provision does not apply to Service Provider’s income or franchise taxes, or any taxes for which Subscriber or any of its Affiliates is exempt, provided Subscriber or its Affiliate has furnished Service Provider with a valid tax exemption certificate.
13. No deduction
14. Warranty Disclaimer
14.2. Service Provider makes no warranties respecting any harm that may be caused by the transmission of a computer virus, worm, time bomb, logic bomb, or other such computer programs to the extent caused by Subscriber in any way. Service Provider further expressly disclaims any warranty or representation to any third party.
15. Limitation of Liability
15.1. To the extent not prohibited by law, Service Provider shall for not be responsible, and shall not pay for, any amount of incidental, special, punitive, consequential or other indirect damages whatsoever, including but not limited to damages for loss of revenue, profits, loss of data, business interruption or any other commercial damages or losses, arising out of or related to Subscriber’s use or inability to use the TPcbc Service, regardless of whether Service Provider was advised of the possibility of such losses in advance.
15.2. LIABILITY. SUBJECT TO 19.4 BELOW, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SERVICE PROVIDER BE LIABLE UNDER ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), ATTORNEYS FEES AND COSTS, OR OTHERWISE, FOR DAMAGES WHICH, IN THE AGGREGATE, EXCEED THE AMOUNT OF EUR 500,000 IN EACH SUBSCRIPTION PERIOD OR EXTENSION PERIOD.
15.3. The foregoing limitations will apply even if a remedy provided by Service Provider, in the event of problems occurring, fails its essential purpose.
16.1. Service Provider Indemnity. The Service Provider shall indemnify the Subscriber and/or its Affiliates against all liabilities, costs, expenses, damages and losses (including any direct losses, loss of profit, loss of reputation and all interest, fines, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Subscriber and/or its Affiliates arising out of or in connection with any claim made against the Subscriber and/or its Affiliates for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Subscriber’s and/or its Affiliate’s use of the Software or any updates.
16.3. Remedies. Should the Software become, or in Service Provider’s opinion is likely to become, the subject of a claim of infringement, Service Provider may, at its option, (i) obtain the right for the Subscriber and its Affiliates to continue using the Software, (ii) replace or modify the Software so it is no longer infringing or reduces the likelihood that it will be determined to be infringing, or (iii) if neither of the foregoing options is commercially reasonable, terminate the access and use of the Software. Upon such termination, and for the avoidance of doubt in addition to the indemnification set out in this Article, the Subscriber and its Affiliates shall cease accessing the Software and Service Provider will refund to the Subscriber and its Affiliates, the subscription fees paid by Subscriber or its Affiliates for the terminated subscription for the past twelve (12) months.
16.4. Indemnification Procedures. The Service Provider’s obligations as set forth in this Article are subject to the Subscriber or its Affiliates: (i) giving the Service Provider prompt written notice of any such claim or the possibility thereof; and (ii) providing reasonable cooperation in good faith in the defense of any such claim.
17. Force Majeure
If to Service Provider, written notice shall be sent to:
TaxModel International B.V.
Attn.: Mr. J.A.C. Moonen
5211 AP ’s-Hertogenbosch, The Netherlands
If to Subscriber, written notice shall be sent to the address as per the Customer Order.
20. Governing Law
22. Entire Agreement / Amendment
25.1. Third Parties. Service Provider will have the right, with the prior written consent from the Subscriber, to use third parties, including, but not limited to, employees of Service Provider’s affiliates and subsidiaries (“Subcontractors”) in performance of its obligations and services hereunder and, for purposes of these SaaS Terms, all references to Service Provider or its employees will be deemed to include such Subcontractors. The Service Provider shall be fully responsible and liable for any action or failure to act of its Subcontractors.
25.5. No Waiver. No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy.
25.7 The Parties agree that confidentiality shall be regulated by the Non—Disclosure Addendum attached as Annex 2 hereto and (ii) the processing of personal data shall be regulated by the Data Processing Addendum attached as Annex 3 hereto.
Last modified: 1 February 2021