1. Content of Software; Grant of Subscription
1.1.The software and materials that are the subject of these Terms of Use shall consist of (i) the compiled software application TPcbc Service, which, together with future software maintenance updates, are or will be marketed together under the name “TPcbc” (the “Application”), of which the intellectual ownership also belongs to Service Provider, and (ii) user documentation that Service Provider makes available in hard copy or electronic form to the Subscriber in conjunction with the licensing of such Applications (“Documentation”). The Application and the Documentation will hereinafter collectively be referred to as the “Software”.
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
1.3.Subscriber agrees that any rights and titles to TPcbc Service and any trademarks or service marks relating thereto, remain with Service Provider. Subscriber shall not have any right, title, or interest in TPcbc Service, except for the use of TPcbc Service as expressly outlined in these Terms of Use.
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.
1.5 The Service Provider acknowledges and agrees that all rights to use TPcbc Service granted hereunder to the Subscriber will also benefit the Subscriber‘s Affiliates (as defined below) and their respective officers, directors, employees, contractors, consultants, agents and any other related persons that need access to and/or use of TPcbc Service within the Territory as defined in the Customer Order. The fees for the subscription of and use by the Subscriber‘s Affiliates (not already included in the total amount referred to in Section 2 above) will be calculated on the same terms as applicable to the Subscriber. In these Terms of Use, the term “Affiliate” means a person (an individual, a corporation, a partnership, an incorporated organization, an association, a limited liability company, a joint venture, a trust or other similar organization, or any other legal entity) that directly or indirectly, through one or more intermediaries, is controlling, controlled by or under the common control with the Party specified, whereas “control” means the ability of such controlling person to determine the affairs of another person by way of (i) holding shares, (ii) possession of voting rights, or (iii) any other way whatsoever.
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.
2.5. Additional Restrictions. In no event will Subscriber disassemble, decompile, or reverse engineer the Application or permit others to do so. Disassembling, decompiling, and reverse engineering include, without limitation: (i) converting the Application from a machine readable form into a human-readable form; (ii) disassembling or decompiling the Application by using any means or methods to translate machine-dependent or machine-independent object code into the original human-readable source code or any approximation thereof; (iii) examining the machine-readable object code that controls the Application‘s operation and creating the original source code or any approximation thereof by, for example, studying the Application‘s behavior in response to a variety of inputs; or (iv) performing any other activity related to the Application that could be construed to be reverse engineering, disassembling, or decompiling. To the extent any such activity may be permitted pursuant to written agreement, between the Parties, the results thereof will be deemed Confidential Information subject to the requirements of the NDA. Subscriber may use Service Provider‘s Confidential Information solely in connection with the Application and pursuant to the terms of these Terms of Use.
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.
2.10 Service Provider hereby provides to Subscriber and its Affiliates a named, non-exclusive, and non-transferable Subscription for use of the Software as expressly set forth in these Terms of Use for a period of 12 months (the “Subscription Period”).
2.11 these Terms of Use is extended automatically with a period of one (1) year again and again, hereafter the “Extension Period,” unless Subscriber notifies Service Provider in writing that it wishes not to renew the Service Agreement at least two (2) months prior to the end of the Subscription Period or Extension Period.
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
3.1 The Subscription Period will begin on the Effective Date of these Terms of Use which is the date the Application is deployed with the Subscriber, as stated above.
3.2. Subscriber and its Affiliates will be provided with access to the TPcbc Service through an installation of the TPcbc Service on a Subscriber dedicated instance of a virtual server (this means a Uniform Resource Locator (URL), colloquially termed a web address, is a reference to a web resource that specifies its location on a computer network and a mechanism for retrieving it) as licensed by Service Provider from its cloud and infrastructure solutions provider, Microsoft Azure (https://azure.microsoft.com), hereafter referred to as “Azure.” The Service Provider shall in any event have taken sufficient measures and controls in place to ensure that Azure comply with the same duties as those which are agreed between the Parties under these Terms of Use.
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.
4.2. Except for any proprietary data relating to Subscriber, its Affiliates and/or its clients, all aspects of the TPcbc Service, including but not limited to, studies, object modules, source code, flow charts, formula engine, specific design and structure of the program and the manuals constitute trade secrets and/or copyrighted material of Service Provider. The Service Provider hereby grants Subscriber and its Affiliates the right to use such aspects in connection with the Software. The Subscriber and its Affiliates shall make use of the TPcbc Service only as expressly permitted under these Terms of Use.
4.3. If, during these Terms of Use, Service Provider were to produce, make or create one or more intellectual property rights regarding the TPcbc Service, these intellectual property rights will remain with Service Provider, regardless whether these relate to functional requests, comments, ideas or any other form of direct or indirect feedback from the Subscriber.
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.
4.5. Except as, and only to the extent permitted in these Terms of Use and by applicable law, Subscriber shall not modify, copy, duplicate, reproduce, decompile, reverse engineer, disassemble or create derivative works of the TPcbc Service, rent, lease, lend, redistribute, redistribute, subscribe or sub-subscribe TPcbc Service and/or transfer or convey the TPcbc Service or any right in the TPcbc Service to anyone else, without the prior written consent of 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.
4.8. The terms and restrictions in this Article 4. shall continue to apply after termination of these Terms of Use, without limit in point of time. Subscriber shall cause its employees and Affiliates to comply with these provisions.
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 protected] / 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
6.1. Service Provider shall make the TPcbc Service available to Subscriber and its Affiliates, for internal use by Subscriber‘s or its Affiliates‘ officers, directors, employees, contractors, consultants, agents, and other representatives appointed by Subscriber or its Affiliates during the term of these Terms of Use. Service Provider is obliged to keep the TPcbc up-to-date.
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.
6.3. Service Provider will use all efforts to achieve Service Provider‘s availability goals described in these Terms of Use.
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.
6.5. Service Provider shall make reasonable efforts to provide its employees and third parties with appropriate notice of the terms and conditions under these Terms of Use, including the confidentiality provisions.
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;
(ii) informs, advices and warns the Subscriber on the consistency of the objectives and the choices made and taken during the duration of these Terms of Use;
(iii) informs the Subscriber about technological advances and developments in the good industry standards relating to the TPcbc Service and that may occur during these Terms of Use;
(iv) advices the Subscriber in the event that the Subscriber would issue additional or new requests.
6.8. Service Provider commits to implement the TPcbc Service solution in a period of two (2) weeks following the signature of these Terms of Use, provided Service Provider receives all invoicing details including purchase order number (if any) together with Subscriber‘s signature of these Terms of Use.
7. Obligations of Subscriber
7.1. Subscriber shall make reasonable efforts to provide its employees and third parties with appropriate notice of the terms and conditions under which access to the TPcbc Service is granted under these Terms of Use, including any limitations on the use of the TPcbc Service as outlined in these Terms of Use.
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.
7.6. Service Provider has the right (but not the obligation) to suspend access to the Application or remove any data or content transmitted via the Application without liability (i) if requested by a law enforcement or government agency or otherwise to comply with applicable law, provided that Service Provider shall use all reasonable efforts to notify Subscriber prior to suspending the access to the Application, or (ii) as otherwise specified in these Terms of Use. Information on Service Provider‘s servers may be unavailable to Subscriber during a suspension of access to the Software. Service Provider will use all reasonable efforts to give Subscriber at least twenty-four (24) hours‘ notice of a suspension unless Service Provider determines in its reasonable judgment that a suspension on shorter or contemporaneous notice is necessary to protect Service Provider or its customers. If the suspension last longer than three (3) calendar days, the Subscriber may terminate these Terms of Use immediately upon notice and the Service Provider will be obliged to refund the fee for the unused period.
8. Warranty of Title
8.1. Service Provider hereby represents and warrants to Subscriber that Service Provider is the owner of the TPcbc Service and Documentation, or otherwise has the right to grant to Subscriber the rights outlined in these Terms of Use. Service Provider guarantees that the use of the TPcbc Service and Documentation does not infringe any third-party intellectual or industrial property rights.
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
- Terminate the Service Agreement, in which case the Service Provider will refund the Subscriber and its Affiliates the fees for the remaining Subscription Period or Extension Period (as applicable). The Subscriber and its Affiliates will be entitled to damages for lack of use of TPcbc Service until another reliable service provider is identified or the Service Provider procures the relevant rights to use TPcbc Service, as the case will be. Such damages will include, but will not be limited to, the costs of acquiring similar services from another provider, the positive difference between the fees of such other provider and the fees under these Terms of Use, or costs of in-house workforce to perform the tasks without the Application.
8.3. Service Provider reserves the right, based on a 90 (ninety) days prior notice, to withdraw from the TPcbc Service any item or part of an item for which Service Provider no longer retains the right to publish, or which Service Provider has reasonable grounds to believe infringes the copyright or is defamatory, obscene, unlawful or otherwise objectionable. In such case, the Parties will renegotiate in good faith the fees indicated in these Terms of Use and the recall conditions. If the Parties fails to reach an agreement on the new fees and the conditions of the recall within 30 (thirty) days or the Subscriber believes that, following the recall, TPcbc Service no longer meets its or its Affiliates expectations and needs, the Subscriber is entitled to terminate these Terms of Use with immediate effect upon notice served in this respect to the Service Provider. In the event of such termination the Service Provider will refund the Subscriber and its Affiliates the fees for the remaining Subscription Period or Extension Period (as applicable).
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.
9.4. The Service Provider warrants that all services performed under these Terms of Use shall be performed in a workmanlike and professional manner.
9.5. In the event of any breach or alleged breach of this warranty, the Subscriber shall promptly notify Service Provider. Subscriber‘s remedy shall be, amongst others, that Service Provider shall correct the TPcbc Service within five (5) days so that it operates according to the warranty. If Service Provider is not able to timely correct the TPcbc Service so that it operates according to the warranty, Subscriber is entitled to terminate these Terms of Use in accordance with article 18. below, be reimbursed the fees for the remaining Subscription Period or Extension Period (as applicable), and be compensated by the Service Provider for the damages thus incurred. This warranty shall not apply to the TPcbc Service if modified by the Subscriber or if used improperly or on an operating environment not approved by Service Provider.
10. Business continuity.
10.1. “Business Continuity Plan” means the business continuity plan in place and maintained by the Service Provider in relation to the performance of the TPcbc Service (and the people and facilities used to provide them) to minimise the effect of any unplanned interruption or event that would significantly impact on the ability of the Service Provider to perform the TPcbc Service, in whole or in part, in accordance with the terms of these Terms of Use;
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.
10.5. In the event of a business disruption that materially impacts the Service Provider‘s provision of the TPcbc Service under these Terms of Use, the Service Provider will notify Subscriber of the disruption and the steps being taken in response.
10.6. Following a Force Majeure event, the Service Provider shall still be obliged to implement the Business Continuity Plan. If the Service Provider suffers a Force Majeure event that prevents or hinders the Service Provider’s performance of its obligations in connection with the Business Continuity Plan for a continuous period of more than 10 business days, Subscriber may terminate these Terms of Use on written notice to the Service Provider.
11. Software Maintenance
11.1. During the Term of these Terms of Use, Service Provider shall, without any additional charges, supply Subscriber and its Affiliates system updates as they become available. Updates shall include all modifications to TPcbc Service that increase or improve the speed, efficiency, appearance or ease of use of TPcbc Service, but shall not include any substantially new versions or substantially new or additional capabilities/functionality of TPcbc Service. The warranties of the Service Provider in these Terms of Use shall apply to the updates.
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. Payment
12.1. Payment of any undisputed Subscription fee owed by Subscriber and each of its Affiliates to Service Provider pursuant to these Terms of Use shall be made within thirty (30) days following the receipt of the invoice by the Subscriber, which will be issued by Service Provider immediately after the signing date of these Terms of Use and which should contain the correct contracting party on Subscriber and each of its Affiliates side and reference to the PO number provided by Subscriber and each of its Affiliates.
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.
12.5. Any request by Subscriber for any additional services or modifications of any kind will be subject to a complementary or modifying proposal by the Service Provider, which, if accepted by Subscriber, will result in the establishment of an amendment to these Terms of Use signed by both Parties.
13. No deduction
13.1. Subscriber shall pay to Service Provider all amounts due under these Terms of Use without any deductions, except for recoverable withholding taxes. If Subscriber is obliged to make deductions by law, Subscriber shall reimburse Service Provider for any such amounts, except for recoverable withholding taxes. In no event shall Subscriber be obligated to pay any tax paid on the income of Service Provider, paid for Service Provider‘s privilege of doing business or otherwise related to the Service Provider‘s business.
13.2. All amounts payable under these Terms of Use shall be paid free of, and without deduction or withholding for or on account of any taxes, levies, duties, fees or other charges of whatever nature, except those required by law.
14. Warranty Disclaimer
14.1. Service Provider‘s warranties outlined in these Terms of Use are exclusive and are instead of all other warranties, expressed or implied.
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.
15.4. Exclusions from limitation of liability. Nothing will exclude or limit the Service Provider‘s liability for (i) death or personal injury due to negligence; (ii) fraud or fraudulent misrepresentation, gross negligence or wilful misconduct; (iii) material breach of these Terms of Use, (iv) breach of confidentiality; (v) breach of Article 8 (“Warranty of Title”); (vi) breach of the Data Processing Agreement; (vii) breach of the Non-disclosure Agreement; (viii) breach of Article 16 (“Indemnification”); or (xi) for any matter in respect of which liability cannot lawfully be limited or excluded.
16. Indemnification
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.
16.2. No Liability. Service Provider will have no liability for any claim of infringement based on: (i) Software which has been modified by the Subscriber or third parties on the Subscriber‘s instruction where the infringement claim would not have occurred in the absence of such modification; (ii) Subscriber‘s or its Affiliate‘s use of the Software in conjunction with data where use with such data gave rise to the infringement claim; or (iii) Subscriber‘s or its Affiliate‘s use of the Software outside the permitted scope of these Terms of Use.
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
None of the Parties to these Terms of Use shall be liable for failure to carry out their obligations hereunder to the extent that non-performance of obligations will be resulting from a force majeure event which includes, without limitation, acts of war, insurrection and/or governmental action prohibiting importation of goods or any other similar cause beyond the control of the Party or Parties provided that the defaulting Party gives written notice to the other Party as soon as reasonably practicable from the start of the force majeure event. Any relief from liability of the defaulting party under this Article shall continue solely for the duration of the force majeure event. In the event the force majeure condition exists for a term of one (1) month, the other Party may terminate these Terms of Use upon written notice to the defaulting Party.
18. Termination
18.1. Subscriber has the right to terminate these Terms of Use, at any time with immediate effect, with a cause that relates to flaws or bugs in the TPcbc Service that Service Provider is unable to repair within fourteen (14) days after receipt of written notification from Subscriber.
18.2. Either Party may terminate these Terms of Use by written notice to the other Party on or at any time after the occurrence of any of the following events: (i) the other Party becoming insolvent, (ii) the other Party having a resolution passed or a petition presented for its winding-up or dissolution (other than for a solvent amalgamation or reconstruction), (iii) the other Party commencing negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or making a proposal for or entering into any compromise or arrangement with its creditors (other than for the sole purpose of a scheme for a solvent amalgamation or the solvent reconstruction of that other Party); (iv) an application to court, or an order, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other Party; or (v) any event analogous to those set out in (i) to (iv) in any relevant jurisdiction.
18.3. Subscriber may terminate these Terms of Use, in whole or in part, with immediate effect upon written notice to the Service Provider if Subscriber determines that (i) a governmental, regulatory, or professional entity or other entity having the force of law has introduced a new, or modified an existing law, rule, regulation, interpretation, or decision, the result of which would render Subscriber‘s performance of any part of these Terms of Use illegal or otherwise unlawful or in conflict with independence or professional rules; (ii) circumstances change (including, without limitation, changes in ownership of the Service Provider or of its Affiliates) so that Subscriber‘s performance of any part of these Terms of Use would be illegal or otherwise unlawful or in conflict with independence or professional rules; or (iii) the Service Provider has not updated the Software in accordance with Article 11.2 of these Terms of Use.
18.4. Subscriber may immediately terminate these Terms of Use, without incurring any liability or penalty, by the delivery of a written notice of termination upon the occurrence of any material breach of Service Provider‘s obligations under these Terms of Use. That termination will be effective as of the date specified by the Subscriber in its notice of termination. This termination right does not limit, and is in addition to, any other right that the Subscriber may have to terminate these Terms of Use and any other remedy available to Subscriber.
18.5. In case of termination of these Terms of Use by Subscriber as per Articles 18.1. to 18.4. above Subscriber shall be entitled to a pro-rata refund of the Subscription Fee for the period after the notification up to the end of the respective one (1) years term. The refund is without prejudice to the Subscriber‘s right to claim damages.
18.6. If the Subscriber does not renew these Terms of Use following Article 2.11. above or terminate these Terms of Use under the above provisions, it shall have the right to require the Service Provider to cease the Subscription immediately. Service Provider shall then be allowed to remove the TPcbc Service from Subscriber‘s server environment and will allow Subscriber 30 (thirty) days to retrieve data from its dedicated environment.
18.7. Within five (5) days after the termination (whatever the reason of termination) or expiration of these Terms of Use, Service Provider will promptly return all the data that Subscriber has entered into and/or has created via the TPcbc Service, in a mutually agreed upon readable format.
18.8. When these Terms of Use is terminated, and upon removal of the TPcbc Service from Subscriber‘s server environment, Service Provider will securely delete all data that Subscriber has entered into and/or has created via the TPcbc Service, without retaining any actual or recoverable copies thereof, and will inform and confirm to Subscriber within 1 (one) month from the removal of the TPcbc Service that all such data has been securely deleted from Subscriber‘s server environment and that Service Provider will not retain any actual or recoverable copies thereof.
18.9. Termination or expiry of these Terms of Use will not affect the rights accrued up to the termination or expiry date or limit either Party from pursuing other remedies available to it, including injunctive relief.
19. Notice
Any notice required by these Terms of Use or given in connection with it shall be in writing and shall be given to the appropriate party by personal delivery or by certified mail, postage prepaid, or recognised overnight delivery services.
If to Service Provider, written notice shall be sent to:
TaxModel International B.V.
Attn.: Mr. J.A.C. Moonen
Stationsplein 12
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
20.1. these Terms of Use shall be construed, interpreted and enforced in accordance with the laws of the Netherlands.
20.2. The court in ‘s-Hertogenbosch, the Netherlands, shall have jurisdiction to hear any dispute under these Terms of Use.
21. Assignment
Neither Party may assign, directly or indirectly, all or part of its rights or obligations under these Terms of Use without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. The Parties are, however, entitled to assign these Terms of Use and/or rights or obligations under these Terms of Use to Affiliates as defined in article 1.5. above.
22. Entire Agreement / Amendment
these Terms of Use constitutes the entire agreement of the Parties and terminates and supersedes all prior understandings or agreements relating to the subject matter hereof, whether verbal or written. Only a further writing that is duly executed by both Parties may modify these Terms of Use.
23. Severability
Each provision of these Terms of Use is a separately enforceable provision. If any provision or provisions of these Terms of Use shall be held invalid, illegal unenforceable, or in conflict with the law of any jurisdiction, the validity, legality, and enforceability of the remaining provisions shall remain in full force and effect as if such invalid or unenforceable term had never been included. An unenforceable or illegal provision will be reformed to reflect the common intention of both Parties to the minimum extent necessary in order for this to remain in effect in accordance with its terms as modified by such reformation.
24. Headings
Headings used in these Terms of Use are provided for convenience only and shall not be used to construe meaning or intent.
25. Miscellaneous
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.
25.2. Survival. The provisions set forth in Article 4 of these Terms of Use, will survive termination or expiration of these Terms of Use and any applicable license hereunder.
25.3. Modifications. The Parties agree that these Terms of Use cannot be altered, amended or modified, except by a writing signed by an authorized representative of each Party.
25.4. Non-solicitation. During the term of these Terms of Use and for a period of one (1) year thereafter, each Party agrees not to hire, solicit, nor attempt to solicit, the services of any employee of the other Party without the prior written consent of that Party. Violation of this provision will entitle the respective Party to liquidated damages against the defaulting Party equal to one hundred percent (100%) of the solicited person‘s gross annual compensation except otherwise agreed between the Parties.
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.
25.6. Independent Contractor. Service Provider is an independent contractor and nothing in these Terms of Use will be deemed to make Service Provider an agent, employee, partner, or joint venturer of the Subscriber or its Affiliates. Neither Party will have authority to bind, commit, or otherwise obligate the other Party in any manner whatsoever.
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 Agreement attached as Annex 3 hereto.
Last modified: 1 February 2021
