Affiliate: any entity that controls, is controlled by or is under common control with a Party, where control means possessing, directly or indirectly, the power to direct or cause the direction of the management, policies, and operations of such entity, whether through ownership of voting securities, by contract, or otherwise.
Authorized Users: employees of Subscriber, and other persons working for Subscriber and/or an Affiliate if agreed in the Customer Order Form.
Confidential Information: all information, including but not limited to documents, data, software, reports and designs, obtained from and/or on the other Party in connection with the Subscription Agreement which is known to be or can be assumed to be confidential, including information concerning each other’s organisation and the services provided/fees charged by TaxModel.
Customer Order: the table describing the TaxSuite Service to be provided by TaxModel to Subscriber.
Information Security Policy: the technical and organizational security measures TaxModel has in place to ensure secure processing of Subscriber Data and Personal Data.
Malicious Code: any malicious data, code, program, or other component which could damage, destroy, alter or disrupt any computer program, firmware or hardware, or which could, in any manner, reveal, damage, destroy, alter or disrupt any data or other information accessed through or processed by a TaxSuite Service or TaxModel’s computer systems in any manner.
Output: any output response generated by a TaxSuite Service through Subscriber’s use and operation of the TaxSuite Service and based on the Subscriber Data uploaded by Subscriber.
Party/Parties: TaxModel and Subscriber individually as a Party or jointly as Parties.
Personal Data: any information relating to an identified or identifiable natural person that is processed by TaxModel for the benefit of Subscriber under a Subscription Agreement.
Proprietary Materials: any TaxSuite Service, including the software, object modules, source code, flow charts, formula engine, layout and structure thereof, any updates and feedback thereto and any content therein, and any developments, customizations, modifications, enhancements, updates, translations, localizations, or other derivative works thereof.
Security Event: any incident or activity that causes, or which TaxModel reasonably believes may cause, a breakdown in the availability, confidentiality or integrity of the physical or electronic information assets owned, leased or licensed by TaxModel.
Subscriber: the legal entity that has concluded the Subscription Agreement to make use of one or more TaxSuite Service(s).
Subscription Agreement: the agreement between TaxModel and Subscriber for the provision of a TaxSuite Service as defined in the Customer Order Form.
Subscriber Data: content, data, information and/or Personal Data, that is uploaded by Subscriber for use in a TaxSuite Service or processed by TaxModel for the provision of a TaxSuite Service to Subscriber.
TaxModel Indemnified Parties: TaxModel’s employees, licensors, subcontractors and suppliers, their representatives and their respective successors and permitted assignees.
TaxSuite Service: a TaxModel cloud-based software solution for international tax and regulatory compliance, including associated services, features, functionalities, content, (user) interfaces, applications and underlying infrastructure or platforms.
Third Party Service Provider: a contractor of Subscriber that provides third party applications, services and/or support activities in connection with the use of a TaxSuite Service.
2.4 These terms and conditions and the exclusions and/or limitations of TaxModel’s liability included in them are also for the benefit of TaxModel Indemnified Parties.
2.6 A TaxSuite Service may contain third party software. Subscriber accepts the terms and conditions of the respective provider that apply to the use of such third party software.
3. Conclusion of Subscription Agreement
3.1 All offers made by TaxModel are without obligation and can be withdrawn by TaxModel, even after acceptance.
3.2 The Subscription Agreement will enter into force as of the moment TaxModel has provided Subscriber access to the subscribed TaxSuite Service (Effective Date).
4. Subscription fee and additional costs
4.1 The fees for the TaxSuite Service shall be invoiced in advance. All prices charged for the TaxSuite Service are stated in Euro. All amounts payable are exclusive of value added tax (VAT) or analogous taxes (if any), which Subscriber shall pay at the rate applicable thereto.
4.2 Payment must be made in Euro and within the period stated in the invoice, in the manner indicated by TaxModel. If no payment period is stated in the invoice, payment must be made within fourteen (14) calendar days of the invoice date. Subscriber is not entitled to suspend or set off payment.
4.3 TaxModel is entitled to adjust the Subscription fee on a yearly basis. TaxModel will give Subscriber thirty (30) calendar days’ notice of the price adjustment in writing. If Subscriber does not want to accept the price adjustment, Subscriber is entitled to terminate the Subscription Agreement by giving notice (opzeggen) in writing within 30 calendar days following TaxModel’s notification of the price adjustment and against the day on which the adjusted price(s) would take effect.
4.4 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.
4.5 TaxModel is at all times entitled to require from Subscriber full or partial payment in advance and/or security for performance of the payment obligations. If Subscriber cannot provide the required payment and/or security or if Subscriber cannot reasonably be expected to meet its payment obligation(s) under the Subscription Agreement (anymore), then TaxModel is entitled to unilaterally terminate (ontbinden), in part or in whole, the Subscription Agreement without being obliged to pay any compensation (for damages or otherwise) to Subscriber.
4.6 If full payment is not made on time, Subscriber will be in default by operation of law. Subscriber will then owe TaxModel the statutory commercial interest pursuant to Article 6:119a of the Dutch Civil Code (‘Burgerlijk Wetboek’) on the outstanding amount from the time it is in default to the date of full payment. If Subscriber is in default, TaxModel is entitled – to limit further damage – to terminate (ontbinden) (a part of) the Subscription Agreement.
4.7 If TaxModel has terminated the Subscription Agreement in accordance with this article 4, then Subscriber will owe TaxModel the Subscription fee for the agreed remaining period of the Subscription Agreement in addition to compensation for any further damage.
4.8 Any in-court or out-of-court costs incurred by TaxModel to collect the amount owed by Subscriber will be paid by Subscriber in full. The out-of-court costs will be set at at least 15% of the amount owed by Subscriber, with a minimum of two hundred fifty (250) Euros.
4.9 In case of an application for a (provisional) suspension of payments, bankruptcy or a (similar) insolvency proceeding, all payment obligations of Subscriber to TaxModel under the Subscription Agreement become immediately due and payable.
5. Implementation of the Subscription Agreement
5.2 In order to enable the proper implementation and use of the TaxSuite Service, Subscriber will always render TaxModel all assistance that is required, including providing accurate, true and complete information to TaxModel.
5.3 TaxModel will provide the TaxSuite Service on a reasonable best-efforts basis, unless TaxModel has explicitly promised a result in the Subscription Agreement. Subscriber acknowledges that such reasonable best efforts performance shall not necessarily bring about the expected results and that TaxModel cannot guarantee that the TaxSuite Service will always be operational, function without errors, disruptions, delays, or imperfections. The TaxSuite Service is provided on an “as is” and “as available” basis, without any express or implied warranties. TaxModel does not warrant fitness for a particular purpose, title, non-infringement, and freedom from computer virus or other Malicious code. TaxModel does not warrant that any information is accurate, complete, or useful. TaxModel does not control and is not responsible for the selection and use of the TaxSuite Service, features and interfaces implemented by Subscriber, the (correctness of the) Subscriber Data and the Output. TaxModel is not responsible for any (failure of) connections or telecommunication services needed to access the TaxSuite Service.
5.4 The dates and/or terms listed in the Subscription Agreement, the Customer Order Form or any other information provided by TaxModel are indicative and do not constitute strict time limits, unless expressly established otherwise. In all cases, that is even if the Parties have expressly agreed to a deadline in writing, TaxModel only falls into default after having been declared in default by Subscriber in detail and in writing, and TaxModel after expiry of the reasonable term that is listed in that default notice, still does not properly comply.
5.5 TaxModel is entitled to engage third parties for (part of) the performance of the Subscription Agreement.
5.6 TaxModel is entitled to make changes to the TaxSuite Service, its features and its functionalities, at its sole discretion, without notice to Subscriber.
5.7 TaxModel is entitled to, at its sole discretion, deny (temporary) access to the TaxSuite Service to anyone at any time.
6.1 Technical support will be available Monday to Friday between 9:00 AM and 5:00 PM Central European Time with the exception of public holidays in The Netherlands. If technical support is needed, Subscriber shall make a service request to TaxModel through the TaxModel TaxSuite service desk via the request form on https://servicedesk.tax-model.com/. TaxModel strives to respond to each service request within 24 hours.
6.2 In case of minor errors that do not lead to a total failure of the TaxSuite Service and that occur during ongoing operation, TaxModel strives to resolve the issue within five (5) working days after receipt of the service request with the error message. In case of a service request regarding disruptions of the system availability which lead to a total failure of the TaxSuite Service, TaxModel will do its utmost best to research, diagnose, troubleshoot, identify solutions, solve the issue and/or indicate the time expected to be needed to solve the issue and report back to Subscriber within 24 (twenty-four) hours after receipt of the service request.
6.3 Subscriber will support TaxModel to a reasonable extent in the identification and correction of any errors in its services. Provided that this is reasonable for Subscriber, TaxModel is entitled to propose temporary error-avoiding-possibilities to Subscriber and to resolve the actual issue at a later stage.
7. Software Maintenance
7.1 During the term of the Subscription Agreement, TaxModel shall, without any additional charges, supply Subscriber system updates as they become available. Updates shall include all modifications, refinements and enhancements to TaxSuite Service that increase or improve the speed, efficiency, appearance or ease of use of TaxSuite Service, but shall not include any substantially new versions or substantially new or additional capabilities/functionality of TaxSuite Service. TaxModel designates whether a new feature qualifies as an update.
7.3 Subscriber acknowledges that TaxModel is by no means obliged to provide system updates and/or implement new features upon the request of Subscriber.
7.4 TaxModel will try to carry out maintenance work whenever possible outside of the normal business hours from Monday to Friday (taking into account public holidays in the Netherlands) between 9:00 am and 5:00 pm Central European Time. TaxModel is entitled to suspend the availability of the TaxSuite Service, without becoming liable for any damages, for maintenance purposes and for other technical requirements if TaxModel deems that necessary. Information on TaxModel’s servers may be unavailable to Subscriber during such suspension. TaxModel will use reasonable efforts to give Subscriber at least twenty-four (24) hours’ notice of a suspension.
8. Intellectual property rights
8.1 All intellectual property rights to the TaxSuite Service or other materials developed under the Subscription Agreement or made available by TaxModel to Subscriber belong to and are vested exclusively in TaxModel and/or its licensor(s). Except for the right of use expressly granted herein, the Subscription Agreement grants no express or implied license, right or interest in any of such intellectual property rights.
8.2 Subscriber will prevent any negative effects in relation to any Confidential Information received that would impede TaxModel to apply for, claim and/or further develop and exploit its intellectual property rights.
8.3 Subscriber retains all rights, title and interest in and to the Subscriber Data and Output. Except for a limited right of use by TaxModel necessary for the provision of the TaxSuite Service, the Subscription Agreement grants TaxModel 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.
8.4 Subscriber may from time to time provide suggestions, comments or other feedback to TaxModel with respect to the TaxSuite Service. Feedback 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.
8.5 TaxModel shall be entitled to full compensation of any costs and damage arising from intellectual property violations, including the full costs of its legal representation.
9. License to use TaxSuite Service
9.2 In case the Parties have agreed in the Subscription Agreement that Subscriber is entitled to grant a royalty-free (sub)license to use the TaxSuite Service to an Affiliate and/or a Third Party Service Provider, Subscriber is responsible and fully liable for (i) all acts, omissions and breaches of the Affiliates and/or Third Party Service Providers, and (ii) shall ensure that the Affiliate and/or engaged Third Party Service Providers is bound to the terms of the Subscription Agreement. TaxModel does not warrant or support any Third Party Service Provider, unless otherwise agreed in writing.
9.3 Subscriber is entitled to set up user accounts for Authorized Users.
9.4 Subscriber warrants that it shall, and shall ensure that the Authorized Users:
(a) protect the names and passwords of Authorized Users of the TaxSuite Service;
(b) prevent unauthorized access and use of the TaxSuite Service;
(c) not license, sub-license, sell, re-sell, rent, assign, lease, transfer, distribute or time share the TaxSuite Service, or otherwise make it available for access by third parties, unless agreed in the Subscription Agreement;
(d) not create derivative works based on or otherwise modify the TaxSuite Service;
(e) not decompile, disassemble, reverse engineer or otherwise attempt to derive source code or other trade secrets from any of the software comprising or in any way making up (a part of) the TaxSuite Service;
(f) not access the TaxSuite Service in order to develop a competing product or service;
(g) not use the TaxSuite Service to provide a service for others;
(h) not remove or destroy any TaxModel or third-party copyright, trade secret or other intellectual property rights from any Proprietary Material, and will take commercially reasonable steps to prevent such removal or destruction;
(i) not use, include, store or send Malicious Code from/to the TaxSuite Service;
(j) not release to any third party the results of any evaluation of the TaxSuite Service performed by or on behalf of Subscriber for the purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes without the prior written approval of TaxModel; and
(k) not infringe or violate any law or intellectual property right of TaxModel or a third party when using the TaxSuite Service.
9.5 Subscriber shall promptly notify TaxModel of any unauthorised use of the TaxSuite Service it becomes aware of.
9.6 If TaxModel becomes aware of unauthorised use of the TaxSuite Service by any of Subscriber’s Authorized Users, TaxModel will notify the Subscriber thereof. If Subscriber has not ensured the discontinuation of the unauthorised use and/or has not implemented measures to avoid reoccurrence of any unauthorised used within ten (10) working days after being notified, TaxModel may suspend access to the TaxSuite Service to the concerned Authorized User or to all Subscriber’s Authorized Users.
9.7 TaxModel is entitled to suspend access to the TaxSuite Service or remove any data or content transmitted via the TaxSuite Service without liability if requested by a law enforcement or government agency or otherwise to comply with applicable law, provided that TaxModel shall use all reasonable efforts to notify Subscriber (if legally permitted) prior to suspending the access to the server.
10.1 Subscriber agrees, to the maximum extent permitted under applicable law, to indemnify and hold harmless TaxModel and the TaxModel Indemnified Parties from and against any loss, cost or damage arising out of or related to: (a) the use of the TaxSuite Service by Subscriber; (b) any Subscriber Data provided by Subscriber to TaxModel under the Subscription Agreement for use in the TaxSuite Service infringing the intellectual property rights of a third party; or (c) any violation of or noncompliance with applicable law by Subscriber. TaxModel shall (i) notify Subscriber promptly in writing of any such claim or suit, (ii) make no admission relating to the infringement, and (iii) allow Subscriber to conduct all negotiations and proceedings and give Subscriber all reasonable assistance in doing so. If Subscriber, according to TaxModel, does not take action in time, TaxModel is entitled to do so on behalf and for the account of Subscriber.
11.2 TaxModel is not liable for indirect damage (including but not limited to consequential damage, lost profits, lost sales or business, reduced goodwill, missed savings, damage due to business interruptions and downtime, damage to reputation, fines or retroactive tax bills, lost data or damage to or replacement of data.
11.3 TaxModel’s liability for direct damage is limited to the aggregate amount paid by Subscriber during the twelve-month period preceding the moment the claim was first made for the use of the TaxSuite Service (excluding VAT and similar taxes) that TaxModel imputably failed to perform.
11.4 TaxModel’s liability is in any event limited to the insurance proceeds it receives from its liability insurance in that case.
11.5 Unless performance by TaxModel is permanently impossible, TaxModel is first liable if Subscriber promptly serves TaxModel with a written notice of default after the damage has occurred, granting TaxModel a reasonable period of time to remedy the breach, and TaxModel should still imputably fail to meet its obligations after that reasonable period of time has passed. The notice of default must give a complete and detailed a description of the failure as possible so that TaxModel has the opportunity to respond adequately.
11.6 All claims and other entitlements against TaxModel, for whatever reason, shall expire 6 months after Subscriber became aware or should have become aware of the facts on which this claim or entitlement is based. These claims and other entitlements shall in any event lapse 12 months after the service in question was invoiced by TaxModel.
11.7 The exclusions and limitations in the abovementioned articles cease to apply if and insofar as the damage is causes by intent or deliberate recklessness on the part of TaxModel’s management.
12.1 All Confidential Information exchanged between the Parties pursuant to the Subscription 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 and Authorized Users, who have “need-to-know” for the performance of the Subscription Agreement;
(b)shall be treated and protected 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, for commercial purposes or any other purpose except as set forth in the Subscription Agreement; and
(d)shall remain the property of and be returned to the disclosing party or destroyed (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 concerned.
12.2 The Parties undertake to impose the same obligations on persons who have been engaged by them in the performance of the Subscription Agreement. Subscriber is only permitted to share Confidential Information of TaxModel with its Authorized Users who are obligated by confidentiality restrictions at least as restrictive as those found in the Subscription Agreement. Subscriber is ultimately responsible and liable for any misuse of TaxModel‘s Confidential Information by its Authorized Users, advisors or personnel.
12.3 The restrictive obligations as set forth in Clause 12.2 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 or its Authorized Users in violation of the Subscription Agreement; (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 legitimately disclosed to the receiving party by a third party who is not subject to any restriction on disclosure by the disclosing party, as evidenced in documentary form; (d) the receiving party can demonstrate was developed by it independently without benefit of, or based on, the disclosures made under the Subscription Agreement , as evidenced in documentary form; (e) can be derived without special efforts from products and/or information freely available on the market, with decompilation of software provided by TaxModel being considered a special effort in any case, as evidenced in documentary form.
12.4 If the receiving party is required by law, order of a court of competent jurisdiction or regulatory or government authority to disclose any of the Confidential Information to a governmental or regulatory authority or an in the order designated third party, the receiving party may so disclose such Confidential Information, provided that it shall promptly notify the disclosing party of and keep the disclosing party reasonably informed as to and respond to any reasonable request by the disclosing party for details relating to any such disclosure.
12.5 The receiving party shall inform the disclosing party in writing immediately if and in so far as the receiving party is aware that it has not or not fully met any of its obligations under the Agreement, and/or is aware that any third party has (possibly) become aware of any Confidential Information.
12.6 TaxModel reserves the right to use the knowledge gained from the execution of the Subscription Agreement for the benefit of other customers, to the extent that in doing so no information of Subscriber contrary to the obligations of confidentiality becomes available to third parties.
13. Security and processing of data
13.1 For the execution of the Subscription Agreement, TaxModel processes Personal Data of Subscriber on the basis of instructions and under responsibility of Subscriber in accordance with the Data Processing Agreement. Subscriber will act as data controller and TaxModel as data processor in accordance with General Data Protection Regulation (2016/679/EU hereinafter referred to as: GDPR).
13.3 TaxModel will process the Personal Data if it has a legal obligation to do so, including the processing that is necessary on account of a court order, a charge granted by the competent authorities or an instruction or lawful request of the relevant competent supervisory authority, such as the Dutch Data Protection Authority (Autoriteit Persoonsgegevens). TaxModel will inform Subscriber without unnecessary delay of such instruction or other communication. This legal obligation exceeds the contractual obligations of processor as established in the Subscription Agreement.
13.4 Subscriber is not entitled to seek recovery from TaxModel of an administrative fine imposed on Subscriber by a supervisory authority, on whatever legal ground.
13.5 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 TaxSuite Service, to prevent unauthorized or unlawful processing, acquisition, access, or accidental loss, destruction, alteration or damage to Subscriber Data and Personal Data. The currently implemented information security and organisational measures are further set out in the TaxModel Information Security Policy (available upon request). Per request of Subscriber, TaxModel shall provide Subscriber with a summary of the most recent information and documentation pertaining to the performance of the TaxSuite Service and TaxModel’s IT security status.
13.6 In the event a Security Event occurs that TaxModel deems relevant for Subscriber, TaxModel shall notify Subscriber as soon as possible under the circumstances.
14. Force Majeure
14.2 If a force majeure situation occurs, the Party concerned will notify the other Party as soon as possible and will make reasonable efforts to keep the other Party informed of the status of the situation.
14.3 In case the force majeure situation lasts for more than ninety (90) calendar days, either Party has the right to terminate the Subscription Agreement in writing (ontbinden). The work already performed under the Subscription Agreement up until that point must be paid for, without anything else being due by either Party to the other Party.
15. Duration and Termination
15.2 TaxModel may terminate (ontbinden) the Subscription Agreement with immediate effect by written notice to Subscriber upon the occurrence of any of the following events:
(a) a petition in bankruptcy 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 or Subscriber is wound up other than as part of a restructuring or merger of companies;
(d)Subscriber admits in writing its inability to meet its debts as they become due; or
15.3 Upon termination, the right to use the TaxSuite Service lapses instantly and TaxModel shall immediately discontinue the provision of the TaxSuite Service. All sums due shall be immediately payable by Subscriber.
15.4 TaxModel reserves the right to keep the Subscriber Data, documents, data files and results the TaxSuite Service generated in the context of the Subscription under its control, until Subscriber has settled all amounts owed to TaxModel.
15.5 TaxModel will make all Subscriber Data available to Subscriber for electronic retrieval for a period of 30 (thirty) calendar days after termination of the Subscription Agreement or, if applicable, once Subscriber has settled all amounts owed. After this term, TaxModel shall destroy all Subscriber Data in its possession, unless retention is required by applicable law.
16.1 All notices and other communications pertaining to the Subscription Agreement shall be in writing (which includes e-mail). TaxModel may provide general notices related to the TaxSuite Service that are applicable to Subscriber via email or notification within the TaxSuite Service. Legal notices (including all legal notices from Subscriber) shall be (a) delivered according to the Party’s contact information as mentioned in the following articles; and (b) deemed effective (i) upon receipt when delivered personally, by courier or sent by certified or registered mail; or (ii) when delivered via email on the moment the email was sent (unless the sender receives an automated message that the email delivery failed).
16.2 Subscriber’s contact information is as detailed by Subscriber on the Customer Order Form.
16.3 TaxModel’s contact information is as follows:
(Statutory name: TaxModel In-House B.V.)
Attn.: Mr. Hank Moonen
5211 AP ‘s-Hertogenbosch
Email: [email protected]
16.5 Subscriber may not sell, transfer, pledge or assign any of its rights or delegate its obligations under the Subscription Agreement without the prior written consent of TaxModel, to which consent condition might apply. Any such attempts other than in accordance with this clause will be null and void. Subject to the foregoing, the Subscription Agreement is binding upon and benefits the Parties and their respective permitted successors and assigns. This provision has the effect under property law (goederenrechtelijke werking) ex article 3:83 sub 2 of the Dutch Civil Code (Burgerlijk Wetboek).
16.7 As of the Effective Date of the Subscription Agreement, TaxModel is entitled to publish a statement and/or issue a press release stating that TaxModel and Subscriber have entered into an agreement with regard to the provision of a TaxSuite Service. Subscriber agrees that TaxModel may disclose the existence of the relationship to third parties and grants TaxModel permission to (i) use the logo, the trade name and the figurative mark of Subscriber and (ii) use Subscriber as a reference for the TaxSuite Service for which it will provide TaxModel reasonable access to senior level personnel.
TaxModel International, Stationsplein 12, 5211 AP ‘s-Hertogenbosch, The Netherlands, + 31 (0) 73 800 00 30, [email protected], tax-model.com.
Last modified: June 2023