The Service as described herein are provided by TaxModel International (statutory name: TaxModel In-House B.V.) – a company incorporated under the laws of the Netherlands, having its principal place of business at Stationsplein 12, 5211 AP, ‘s-Hertogenbosch (“TaxModel”). “Subscriber” or “You” shall mean any third party signed up for the Service by means of an Order Form.
1.1. “Intellectual Property Rights” means any and all intellectual property rights throughout the world, including, without limitation, any and all patents, copyrights, trademarks, trade secret rights, inventions, and any and all similar or equivalent rights throughout the world.
1.2. “Service” shall mean the technology driven transfer pricing service provided by TaxModel through its fulfilment center TPnext and comprising the TPnext Benchmark Service, as further described under 2.
1.3. “Subscriber Data” shall mean any and all content, data or information, including Personal Data (as defined in the Data Processing Addendum) as well as, but not limited to, software, user interface designs, class libraries, graphics, images, audio files, text, objects and documentation, that is uploaded by Subscriber for use in the Service or processed by TaxModel for the provision of the Service.
1.4. “Output” means any output response generated by the Service, including but not limited to reports, diagrams, pictures, graphs, charts, etc. generated through Subscriber’s use and operation of the Service and based on the Subscriber Data uploaded by Subscriber, however excluding the TaxModel Proprietary Materials provided by TaxModel through the Service.
2. Service Description
2.1. TPnext Benchmark Service
The TPnext Benchmark Service comprises the preparation and finalization of benchmark analyses, reports and audit trail (collectively hereafter: “Benchmarks”) using a combination of TaxModel’s proprietary software application TPbenchmark (as defined below), third-party technology, company databases, and a dedicated team of human resources.”
2.1.1. TPbenchmark is TaxModel’s proprietary cloud-based software solution to be employed by users to ease, automate, and perform an audit trail on key steps of the benchmarking process for intercompany transactions that relate to the supply of goods and/or services (“TPbenchmark”). TPbenchmark key features include:
- Automated website search – crawling feature;
- Automated translation – using Microsoft Azure as translation service;
- Automated screenshots;
- Automated benchmark reports;
- Automated audit trails of accept/reject path;
- Import functionality for (Bureau van Dijk and other) database Excel retrieves;
- Parameter functionality including enhanced (de)selection functionality (wild cards);
- Review functionality;
- Working capital adjustment functionality;
2.1.2. Third-party technology and company databases (collectively hereafter: “Database”): TaxModel’s TPnext Benchmark Service uses the TPCatalyst software of Bureau van Dijk (“BvD”) and company data of Bureau van Dijk’s Orbis company database (“Orbis”). Orbis is provided by BvD, a Moody’s Analytics company, the world’s most powerful comparable data resource on private companies. Orbis contains information on more than 360 million companies across the globe. With over a hundred search criteria, companies fulfilling very precise profiles can be found on Orbis. The global Orbis database covers all the same information as the regional subset databases (such as BvD Amadeus, Oriana and Ruslana). Additional databases may be used in the future at the sole discretion of TaxModel.
2.1.3. TaxModel shall perform the following benchmark fulfillment services as part of the TPnext Benchmark Service: Services outside TPbenchmark:
- Activity 1: Completion of Search Strategy based on agreed search form
- Activity 2: Search and export of companies from Database, based on agreed search form Services using TPbenchmark
- Activity 3: Data setup
- Activity 4: Determination of search parameters
- Activity 5: Multi check of trade descriptions
- Activity 6: Single check of company websites
- Activity 7: Working capital adjustment
- Activity 8: Validation of search results
- Activity 9: Finalization of benchmark report
2.1.4. Setup and Agreement Search Strategy (“Search Strategy”): TaxModel shall provide Subscriber a search form that must be explained to and approved by Subscriber in writing before TaxModel exports companies from the Database. TaxModel will only reconsider the approved Search Strategy in the event it results in an insufficient number of companies according to the discretion of TaxModel. The updated search must then be approved again by Subscriber.
2.1.5. Export from Database (“Database Export”): TaxModel searches in and exports from the Database, based on the approved Search Strategy.
2.1.6. Data setup (“Data Set”): TaxModel uploads the Database Export into TPbenchmark. TPbenchmark calculates the full interquartile range on the full Data Set and confirms to Subscriber that the analysis will result at interquartile points in this range. At this stage, Subscriber can only request a new Search Strategy when Subscriber purchases or uses a new TPnext Benchmark Credit. In the event that the Data Set exceeds 350 companies, TaxModel will suggest to Subscriber the use of a filter to achieve a maximum number of companies. TaxModel will share with Subscriber the proposed filters for Subscriber’s approval. If no response is received within 5 (five) business days, the applied filters will be considered to be approved by Subscriber.
2.1.7. Parameters & Boolean setting (“Parameters & Boolean”): TaxModel will suggest to Subscriber a set of rejection and acceptance parameters plus a Boolean search to achieve a best practice set of companies. TaxModel will share with Subscriber the proposed rejection and acceptance parameters plus a Boolean search for Subscriber’s approval. If no response is received within 5 (five) business days, the applied rejection, acceptance parameters plus a Boolean search will be considered to be approved by Subscriber.
2.1.8. Activities 5 up to and including Activity 9 as per Article 2.2.3. are performed at the full discretion of TaxModel without further approval and involvement from Subscriber. TaxModel will present the final benchmark report to Subscriber for final comments. If no response is received within 10 (ten) business days, the benchmark report and analysis will be considered to be approved by Subscriber. The Subscriber will have 24/7 access to the report and audit trail.
2.2. Additional provided services
For every yearly cycle of Benchmarks prepared, Subscriber may request an online presentation by TaxModel on steps taken, the results, or the status of the documentation setup in TPbenchmark. If desired, Subscriber shall request (by email) that TaxModel organize such a presentation before TaxModel has finished Activity 9 as per Clause 2.1.8. above.
3. Fees, Invoicing and Payment
3.1. The fee for one or more credit(s) for the TPnext Benchmark service (hereafter: “TPnext Benchmark Credit“) is set forth in the TPnext Benchmark Order Form and shall be invoiced and paid accordingly; either monthly or annually in advance. Subscriber shall pay all amounts within 30 days of invoice date.
3.2. All prices charged for the Service are stated (and payments made) in EUROS. All amounts payable are exclusive of value added tax (“VAT”) or analogous taxes (if any), which Subscriber shall pay at the rate applicable thereto from time to time. TaxModel will provide Subscriber with a valid VAT invoice (applicable in the country of supply).
3.3. Subscriber shall pay to TaxModel all amounts due without any deductions, except for recoverable withholding taxes. If Subscriber is obliged to make deductions by law, Subscriber shall reimburse TaxModel for any such amounts, except for recoverable withholding taxes. In no event shall Subscriber be obligated to reimburse or compensate for any tax paid on the income of TaxModel or paid for TaxModel’s privilege of doing business.
3.4. If any undisputed payments are not received from Subscriber by the due date, then such charges will accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date TaxModel receives such payment.
3.5. If any undisputed payments are not received from Subscriber by the due date, then in addition to any other remedies available to TaxModel, TaxModel may suspend any further provision of Services until all overdue payments are received from Subscriber.
4. Term and Termination of the Agreement
4.2. TaxModel may terminate the Agreement with immediate effect by written notice to Subscriber upon the occurrence of any of the following events; (a) any petition in bankruptcy or any petition for similar relief is filed against Subscriber; (b) a receiver is appointed for Subscriber or any material portion of the property of Subscriber; (c) Subscriber makes an assignment for the benefit of creditors; (d) Subscriber admits in writing its inability to meet its debts as they become due; (e) Subscriber fails to substantially comply with any material term or condition contained herein and such party fails to correct such lack of compliance within thirty (30) days after receipt of a written notice of such failure by the non-defaulting party.
4.3. Notwithstanding Clause 5.2, if the material breach is a default in payment of any sum due hereunder and Subscriber fails to cure such default within thirty (30) days after notice thereof, then TaxModel shall have the right to do any or all of the following: (a) declare the Agreement to be in default whereupon, to the extent permitted by law, all amounts payable under the Agreement for the entire term as chosen in the Order Form shall become immediately due and payable; (b) suspend the Service; (c) proceed by court action to enforce performance and/or recover damages; and/or (d) terminate the Agreement.
4.4. Upon termination, TaxModel shall immediately discontinue the provision of the Services and all sums due shall be paid immediately by Subscriber. Unless retention is required by applicable law, TaxModel shall destroy all Confidential Information of Subscriber and any Subscriber Data in its possession.
4.5. The provisions of Clauses 3, 4, 5, 6, 8, 9 , any accrued payment obligations, and any other provisions that are intended to survive the expiration or termination of the Agreement will survive and continue in effect and will bind the parties and their permitted successors and assigns.
5. Proprietary Rights
5.2. Subscriber retains any and all right, title and interest in and to the Subscriber Data and Output. Except for the limited right of use by TAXMODEL in relation to the provision of the Service, the Agreement grants no license, right or interest in any copyright, patent, trade secret, trademark, logo, invention or other intellectual property right with respect to the Subscriber Data or Output.
5.3. Subscriber may from time to time provide suggestions, comments or other feedback (“Feedback“) to TaxModel with respect to the Services, TaxModel Proprietary Materials, and/or the model or way the Output is presented. All Feedback is and shall be given entirely voluntarily. Feedback, even if designated as confidential, shall not, absent a separate written agreement, create any confidentiality obligation for TaxModel. TaxModel is and shall be free to use, disclose, reproduce, license or otherwise distribute, and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of Intellectual Property Rights or otherwise.
6. Warranty and Representations
6.2. Subscriber represents and warrants that; (a) it is a legal entity duly organized and validly existing under the laws of jurisdiction in which it is registered or in which its principal office is located, as the case may be; (b) it has the corporate authority to enter into the Agreement; (c) the Agreement to which it is a party is legal, valid and binding on it, and is enforceable in accordance with the terms hereof or thereof; and (d) the individual signing the Order Form on its behalf has the power and authority to enter into the Agreement; (e) Subscriber’s use of the Service comply and will continue to comply with all applicable laws and regulations and the terms of the Agreement and (f) the Subscriber Data shall not infringe or otherwise violate any statutory, common law or any Intellectual Property Rights of any third party.
7. Processing of Personal Data, Confidentiality and Security
7.2. All Confidential Information exchanged between the parties pursuant to the Agreement: (a) shall not be copied or distributed, disclosed, or disseminated in any way or form by the receiving party to anyone except its own employees, who have need-to-know for the performance of the Agreement; (b) shall be treated by the receiving party with the same degree of care to avoid disclosure to any third party as is used with respect to the receiving party’s own confidential information, but with no less than reasonable care; (c) shall not be used by the receiving party for its own purposes or any other purpose except as set forth in the Agreement; and (d) shall remain the property of and be returned to the disclosing party (along with all copies thereof) within ten (10) business days of receipt by the receiving party of a written request from the disclosing party setting forth the Confidential Information to be returned or upon expiration or termination of the Agreement.
7.3. The restrictive obligations as set forth in Clause 6.2 above shall not apply to the disclosure or use of any Confidential Information which (a) is or hereafter becomes public knowledge through no fault of the receiving party; (b) is known by the receiving party on the date of disclosure and is not subject to any restriction on disclosure, as evidenced in documentary form; (c) is disclosed to the receiving party by a third party who is not subject to any restriction on disclosure by the disclosing party; (d) the receiving party can demonstrate was developed by it independently without benefit of, or based on, the disclosures made hereunder, or (e) is disclosed pursuant to a requirement of law, order of a court of competent jurisdiction, or regulatory or government authority, provided that the receiving party shall inform the disclosing party forthwith of such requirement or order in order to enable the Disclosing party to take protective action.
7.4. Taking into account the state of the art and the costs of implementation, TaxModel shall ensure to maintain appropriate technical, physical and organizational measures and security practices and controls commensurate with the sensitivity of the Subscriber Data, Output and Personal Data to be used and processed by TaxModel in the Service, to prevent unauthorized or unlawful processing, acquisition, access, or accidental loss, destruction, alteration or damage to Subscriber Data and Personal Data. The currently implement security measures are further set out in TaxModel’s Information Security Management System Policy (ISMS Policy).
7.5. In the event a Security Event (defined herein below) occurs, the Subscriber Data or Personal Data is disabled, lost, corrupted, destroyed, disclosed or otherwise compromised, TaxModel shall notify Subscriber as soon as possible under the circumstance, and in any event, within two (2) days of discovery. Such notice shall summarize, in reasonable detail, to the best of TaxModel’s knowledge at the time of the notice: (i) the timing and nature of the Security Event; (ii) the potential impact of such Security Event on Subscriber and any data subjects; and (iii) the corrective action taken or proposed to be taken by TaxModel. “Security Event” means any incident that involves, or which TaxModel reasonably believes may involve: (i) the possible breach of TaxModel Information Security Policy; or (ii) any unauthorized and/or unlawful processing or loss of Subscriber’s Data or Personal Data.
8. Disclaimer and Limitation of Liability
8.1. TAXMODEL WILL USE REASONABLE SKILL AND CARE IN PROVIDING THE SERVICE TO SUBSCRIBER BUT DOES NOT GUARANTEE THAT THE SERVICE WILL ALWAYS BE OPERATIONAL, FUNCTION WITHOUT ERRORS, DISRUPTIONS, DELAYS, OR IMPERFECTIONS. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND FREEDOM FROM COMPUTER VIRUS OR OTHER HARMFUL CODE. TAXMODEL DOES NOT WARRANT THAT ANY INFORMATION IS ACCURATE, COMPLETE, OR USEFUL. TAXMODEL DOES NOT CONTROL AND IS NOT RESPONSIBLE FOR THE USE OF THE SERVICE, ITS FEATURES AND INTERFACES BY SUBSCRIBER. TAXMODEL IS NOT RESPONSIBLE FOR ANY (FAILURE OF) CONNECTIONS OR TELECOMMUNICATION SERVICES NEEDED TO ACCESS THE SERVICES.
8.2. EXCEPT IN THE EVENT OF WILFUL MISCONDUCT BY TAXMODEL AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL TAXMODEL OR TAXMODEL INDEMNIFIED PARTIES (DEFINED IN CLAUSE 10) BE LIABLE TO SUBSCRIBER, OR ANY THIRD PARTY FOR DIRECT, SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR OTHER ECONOMIC HARDSHIP ARISING FROM OR RELATED IN ANY WAY TO THE AGREEMENT AND THE USE OF THE SERVICE, INCLUDING BREACH OF WARRANTY, BREACH OF CONTACT, NEGLIGENCE, OR OTHER LEGAL BASIS OF CLAIM, WHETER IN TORT OR CONTRACT (EVEN IF TAXMODEL IS AWARE OF THE LIKELIHOOD OF SUCH DAMAGES OCCURING), INCLUDING LOSS OF PROFITS, GOODWILL OR SAVINGS, DOWNTIME, LOSS OF DATA OR DAMAGE TO OR REPLACEMENT OF DATA OR ANY REASON WHATSOEVER. NEITHER TAXMODEL NOR ANY OF THE TAXMODEL IMDEMNIFIED PARTIES SHALL BE RESPONSIBLE FOR ANY LOSSES OR DAMAGES RESULTING FROM THE USE OF OR INABILITY TO USE THE SERVICE.
8.3 IN THE EVENT TAXMODEL IS FOUND LIABLE FOR ANY DAMAGES, FOR ANY REASON WHATSOEVER HEREUNDER, THE PARTIES HEREBY EXPRESSLY AGREE THAT THE LIMIT OF TAXMODEL’S LIABILITY FOR ANY AND ALL CLAIMS SHALL NOT EXCEED THE AGGREGATE AMOUNTS PAID UNDER THE AGREEMENT BETWEEN SUBSCRIBER AND TAXMODEL IN THE TWELVE (12) MONTHS PRECEDING THE FIRST CLAIM.
8.4 Subscriber understands and agrees that the remedies provided herein are exclusive and allocate risk of nonconformity of the Service between the parties to the extent authorized by applicable law. No action, regardless of form, arising out of the transactions in relation to the Agreement may be brought by either party more than one (1) years after the cause of action first arises.
9.1. Subscriber hereby agrees, to the maximum extent permitted under applicable law, to indemnify and hold harmless TaxModel, any of its licensors or suppliers, their representatives and their respective successors and permitted assigns (collectively, the “TAXMODEL Indemnified Parties”) from and against any losses, cost or damages of any TaxModel Indemnified Party arising out of or related to: (a) the use of the Service by the Subscriber; (b) breach of any representation or warranty by the Subscriber; (c) any Subscriber Data provided by Subscriber to TaxModel under the Agreement for use in the Service infringing the Intellectual Property Rights of a third party; or (d) any violation of or noncompliance with applicable law by the Subscriber. TaxModel shall (i) notify the Subscriber promptly in writing of any such claim or suit, (ii) make no admission relating to the infringement, (iii) allow Subscriber to conduct all negotiations and proceedings and give Subscriber all reasonable assistance in doing so.
10.2. Force Majeure
All notices and other communications pertaining to the Agreement shall be in writing and shall be deemed to have been given by a party thereto as set forth below and shall either be (a) personally delivered; (b) sent via postage prepaid certified mail, return receipt requested; or (c) sent by nationally-recognized private express courier. Notices shall be deemed to have been given on the date of receipt if personally delivered, or two (2) days after deposit via certified mail or express courier. Either party may change its address for purposes hereof by written notice to the other in accordance with the provision of this Clause. Subscriber’s address is as detailed by Subscriber on the TPnext Order Form.
TaxModel’s address is as follows:
TaxModel International / TPnext
Attn.: Mr. Hank Moonen
5211 AP ‘s-Hertogenbosch
10.4. Governing Law and Venue
Subscriber may not assign any of its rights or delegate its obligations under the Agreement without the prior written consent of TaxModel, to which consent condition might apply. Any attempt to assign or transfer the Agreement or delegate any obligations hereunder other than in accordance with this Clause will be null and void. Subject to the foregoing, the Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
10.6. Entire Agreement
As of the Effective Date of the Agreement, TaxModel is entitled to publish a press release stating that TaxModel and Subscriber have entered into an agreement with regard to the provision of the Service. Subscriber agrees that the other Party may disclose the existence of the relationship to third parties and grants TaxModel permission to use its logo, provided that TaxModel complies with the guidelines regarding the use of such logo. Subscriber also grants TaxModel permission to use Subscriber as a reference for the Service and will provide TaxModel reasonable access to senior level personnel for such purpose.