“Affiliate” means 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” shall mean (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 Clause 3.5 Subscriber’s or its Affiliates’ service providers.
“Customer Order Form” shall mean the form describing the services provided by TaxModel to the Subscriber.
“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.
“Output” means any output response generated by any TaxSuite Service, including but not limited to reports, diagrams, pictures, graphs, charts, etc. generated through Subscriber’s use and operation of the TaxSuite Service and based on the Subscriber Data uploaded by Subscriber, however excluding the TaxModel Proprietary Materials provided by TaxModel through a TaxSuite Service.
“Party” means either TaxModel or Subscriber.
“Parties” means TaxModel and Subscriber.
“Subscriber” shall mean the party subscribing to any of the TaxSuite Services.
“TaxModel Proprietary Materials” means the TaxSuite Service, including any software, object modules, source code, flow charts, formula engine, layout and structure of the TaxSuite Service, any Updates and Feedback thereto and any content therein, and any developments, customizations, modifications, enhancements, updates, translations, localizations, or other derivative works thereof.
“Subscriber Data” shall mean any and all content, data, or information, including Personal Data (as defined in the Data Processing Agreement 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 TaxSuite Service or processed by TaxModel for the provision of the TaxSuite Service.
- Content of Software; Grant of Subscription
- Rights and limitations of use
3.3. Subscriber agrees that it shall not reverse engineer, decompile, disassemble, 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. Subscriber shall 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.
3.4. Subscriber shall not (and shall not permit others to): (i) license, sub-license, sell, re-sell, rent, lease, transfer, distribute or time share the TaxSuite Service, or make it available for access by third parties, including, without limitation, in the manner of a service bureau or hosted application except as provided for in Clause 3.5; (ii) create derivative works based on or otherwise modify the TaxSuite Service; (iii) disassemble, reverse engineer or decompile the TaxSuite Service; (iv) access the TaxSuite Service in order to develop a competing product or service; (v) use the TaxSuite Service to provide a service for others; or (vi) use, include, store or send Malicious Code from the TaxSuite Service. For purposes of this Clause, “Malicious Code” means any undocumented malicious data, code, program, or other internal component (e.g., computer worm, computer time bomb or similar 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 the TaxSuite Service or TaxModel’s computer systems in any manner.
3.6 Subscriber is entitled to set-up internal and external Authorized Users as well as the right to set-up an unlimited number of transfer pricing files.
4.3. TaxModel will organise the deployment of a dedicated TaxSuite environment for Subscriber and its Affiliates.
4.4. Subscriber and its Affiliates will have access to the TaxSuite Service as indicated in Clause 4.2. above.
- Proprietary Rights & Restrictions
5.1. TaxModel and its licensors retain any and all right, title, and interest in and to the TaxSuite Service, including any software, object modules, source code, flow charts, formula engine, layout and structure of the TaxSuite Service, any Updates and Feedback thereto and any content therein, and any developments, customizations, modifications, enhancements, updates, translations, localizations, or other derivative works thereof (collectively, the “Proprietary Materials”). Except for the right of use expressly granted herein, the Subscription Agreement grants no express or implied license, right or interest in any Intellectual Property Right of TaxModel. Subscriber receives no rights to and will not, except as expressly permitted herein, sell, assign, lease, market, transfer, encumber or suffer to exist any lien or security interest in the Proprietary Materials, nor will Subscriber take any action that would cause any Proprietary Materials to be placed in the public domain. Subscriber will not remove or destroy and will take commercially reasonable steps to prevent the removal or destruction of, any TaxModel or third-party copyright, trade secret or other Intellectual Proprietary Rights notice from any Proprietary Material.
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 TaxSuite Service, the Subscription 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 TaxSuite Service, 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.
- Subscription Fee and Additional Costs
6.1. The fees related to the Subscription (“Subscription Fees”) to the TaxSuite Service is set forth in a separate Customer Order Form and shall be invoiced and paid in advance. Subscriber shall pay all amounts within 30 days of invoice date.
6.2. All prices charged for the TaxSuite 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.
6.3. 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.
6.4. 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.
6.5. 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 TaxSuite Service until all overdue payments are received from Subscriber.
- Obligations of TaxModel
7.1. TaxModel takes immediate ownership of technical issues reported and seeing problems through to resolution, as follows:
- Response time: within 24 (twenty-four) hours TaxModel will research, diagnose, troubleshoot, identify solutions with regard to issues reported and report back to Subscriber the timing of resolution, which under no circumstances will be in excess of 5 (five) business days since the issue was reported;
- Working hours: technical support will be available during regular office hours (i.e. between 9 AM and 5 PM Central European Time zone);
7.2. Per request of Subscriber, TaxModel shall immediately provide Subscriber with the most recent information and documentation pertaining to the performance of the TaxSuite Service and TaxModel’s IT security status.
7.2. TaxModel shall, at its own expense maintain sufficient insurance with insurers of good reputation in line with the business risks of TaxModel, and TaxModel shall provide Subscriber with certificate of the insurance evidencing required coverage upon requests.
7.3. TaxModel has a duty to give advice to the Subscriber. As part of its general duty to give advice, TaxModel must, in particular, ensure that it:
- informs, advises and warns the Subscriber on the nature, the conditions of performance and any useful precaution concerning the TaxSuite Service, and more particularly with regard to safety;
- advises the Subscriber in the event that the Subscriber would issue additional or new requests.
7.4. TaxModel commits to implement the TaxSuite Service solution in a period of two (2) weeks following the signature of the Customer Order Form, provided TaxModel receives all invoicing details including purchase order number (if any) together with Subscriber’s signature of the Customer Order Form.
- Obligations of Subscriber
8.1. Subscriber or its Affiliates shall make all requests to TaxModel through TaxModel’s service desk (email address: [email protected]) to which Subscriber and its Affiliates will receive access together with the deployment of the Application.
8.2. Subscriber shall (i) access and use the TaxSuite Service solely for legal, authorized, and acceptable purposes, (ii) ensure that its Authorized Users are aware of the terms and conditions applicable to the TaxSuite Service and (ii) accept full responsibility at all times for any and all use of the TaxSuite Service by its Affiliates and/or Authorized Users.
8.3. In the event of any unauthorised use of the TaxSuite Service by an Authorized User of the Subscriber or its Affiliate, TaxModel 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 TaxSuite Service to the concerned Authorized User or Subscriber for the use of the TaxSuite Service. TaxModel 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.
8.4. Where access to the TaxSuite 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 TaxSuite Service.
8.5. The Subscriber shall use a market standard anti-virus program that will automatically check the data uploaded 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.
- Warranties and representations
9.1. TaxModel represents, warrants and covenants during the Term of the Subscription Agreement 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 Subscription Agreement; (c) the Subscription 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; (d) TaxModel and the TaxSuite Service comply with all applicable governmental laws, statutes, ordinances, administrative orders, rules and regulations; (e) the TaxSuite Service will conform in all material respects to all specifications and descriptions set forth in the Customer Order Form; (f) any additional (support) services performed by TaxModel will be performed in a good, professional and workmanlike manner, and (f) the Proprietary Materials do not and will not infringe or otherwise violate any statutory, common law or Intellectual Property Rights of any third party.
9.2. 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 Subscription Agreement; (c) the Subscription 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 Customer Order Form on its behalf has the power and authority to enter into the Subscription Agreement; (e) Subscriber’s, its Affiliates’ and its Authorized Users’ use of the TaxModel Service comply and will continue to comply with all applicable laws and regulations and the terms of the Subscription 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.
- Business continuity
10.2. TaxModel 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. TaxModel will provide an executive summary of such plan upon reasonable request of Subscriber.
10.3. TaxModel 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 TaxModel shall degrade the quality of the Business Continuity Plan in a manner which has a material adverse impact on the TaxSuite Service.
- Software Maintenance
11.2. Subscriber acknowledges that TaxModel is by no means obliged to provide system updates and/or implement new features 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 Clause 3. above.
- Warranty Disclaimer and limitation of liability
12.1. TaxModel will use reasonable skill and care in providing the TaxSuite Service to Subscriber but does not 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, 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, its Affiliates and/or Authorized Users. TaxModel is not responsible for any (failure of) connections or telecommunication services needed to access the services.
12.2. 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 article 13) 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 TaxSuite Service, including breach of warranty, breach of contract, negligence, or other legal basis of claim, whether in tort or contract (even if TaxModel is aware of the likelihood of such damages occurring), 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 Indemnified Parties shall be responsible for any losses or damages resulting from the use of or inability to use the TaxSuite Service.
12.3. 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 Subscription Agreement between Subscriber and TaxModel in the twelve (12) months preceding the first claim.
12.4. Subscriber understands and agrees that the remedies provided herein are exclusive and allocate risk of non-conformity of the TaxSuite 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 Subscription Agreement may be brought by either party more than one (1) years after the cause of action first arises.
12.5. The foregoing limitations will apply even if a remedy provided by TaxModel, in the event of problems occurring, fails its essential purpose.
13.1. 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 TaxSuite 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 Subscription Agreement for use in the TaxSuite 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.
- Processing of Personal Data, Confidentiality and Security
14.2. 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, who have need-to-know for the performance of the Subscription 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 Subscription 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 Subscription Agreement.
14.3. The restrictive obligations as set forth in Clause 14.2. 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.
14.4. 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 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 implement information security and organisational measures are further set out in the Information Security Management Annex hereto.
14.5. 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.
15.1. Either Party may terminate the Subscription by sending written notice to the other Party no less than thirty (30) days prior to the anniversary date of the Subscription.
15.2. TaxModel may terminate the Subscription 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.
15.4. Notwithstanding Clause 15.2, 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 Subscription Agreement to be in default whereupon, to the extent permitted by law, all amounts payable under the Subscription Agreement for the entire term as chosen in the Customer Order Form shall become immediately due and payable; (b) suspend the TaxSuite Service; (c) proceed by court action to enforce performance and/or recover damages; and/or (d) terminate the Subscription Agreement.
15.5. Upon termination, TaxModel shall immediately discontinue the provision of the TaxSuite Service 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.
15.6. The provisions of Clauses 3., 5., any accrued payment obligations, and any other provisions that are intended to survive the expiration or termination of the Subscription Agreement will survive and continue in effect and will bind the parties and their permitted successors and assigns.
16.3. Notice. All notices and other communications pertaining to the Subscription 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 Customer Order Form. TaxModel’s address is as follows:
(Statutory name: TaxModel In-House B.V.)
Attn.: Mr. Hank Moonen
5211 AP ‘s-Hertogenbosch
16.5. Assignment Subscriber may not 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 attempt to assign or transfer the Subscription Agreement or delegate any obligations hereunder other than in accordance with this Clause will be null and void. Subject to the foregoing, the Subscription Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
16.9 Publicity. As of the Effective Date of the Subscription 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 TaxSuite 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 TaxSuite Service and will provide TaxModel reasonable access to senior level personnel for such purpose.
TaxModel International, Stationsplein 12, 5211 AP ‘s-Hertogenbosch, The Netherlands,
+ 31 (0) 73 800 00 30, [email protected], tax-model.com.
Last modified: March 2023