TAX OPTIMISER SUBSCRIPTION AGREEMENT
IMPORTANT NOTICE: TAX OPTIMISER DOES NOT PROVIDE TAX, LEGAL OR ACCOUNTING ADVICE. THE TAX OPTIMISER DATA IS PREPARED FOR INFORMATIONAL PURPOSES ONLY, AND IS NOT INTENDED TO PROVIDE, AND SHOULD NOT BE RELIED ON FOR, TAX, LEGAL OR ACCOUNTING ADVICE. YOU SHOULD CONSULT YOUR OWN TAX, LEGAL AND ACCOUNTING ADVISORS BEFORE ENGAGING IN ANY TRANSACTION OR ACTING ON ANY INFORMATION PROVIDED BY TAX OPTIMISER OR VIA THE TAX OPTIMISER APPLICATION.
IF YOU DO NOT AGREE TO BE BOUND BY THE AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICE.
If you subscribe to the Services for a term (the “Initial Term”), then the Agreement will be automatically renewed for additional periods of the same duration as the Initial Term at Tax Optimiser’s then-current fee for such Services unless you decline to renew your subscription in accordance with Clause 7.1 below.
1.1 Customer Reports means Tax Optimiser Data that is both (a) related to tax and the Customer’s company information; and (b) collected by the public-source search functions of the Service using one or more Tailored Search Keywords as the search criteria.
1.2 Effective Date means the earlier to occur of (a) the date that Customer accesses the Service; or (b) the date that Customer clicks the “I Accept” button accompanying this Agreement.
1.3 Party means either Tax Optimiser or Customer, and Parties means, collectively, Tax Optimiser and Customer.
1.4 Service means Tax Optimiser’s tax analysis submission and reporting service, which includes the Tax Optimiser application.
1.5 Tailored Search Keywords means any keyword, numerical or other textual search criteria that Customer registers in a custom search field of the Service, which the Service uses as Customer-specified search criteria when monitoring public sources for tax information.
1.6 Tax Optimiser means Tax Optimiser Limited a company with registered offices at 15 Whiting Street, Bury St Edmunds, Suffolk, IP33 1NX.
1.7 Tax Optimiser Data means (a) all information that is generated, collected, developed, produced, or created through the public-source search functions of the Service, including such information generated by previous searches that is stored in the Tax Optimiser tax information database; and (b) any analytical product that is produced by Tax Optimiser based on the information described in sub-clause (a).
2. ACCESS TO AND PROVISION OF THE SERVICE
2.1 Service Access. Subject to the terms and conditions of this Agreement, Tax Optimiser hereby grants to Customer a non-exclusive, non-transferable licence, during the term of this Agreement, to use and access the Service, solely in accordance with the published documentation for the Service, for Customer’s own internal-use purposes and to service its clients (which may include permitting the Customer’s client to access the Service in order to process that Customer client’s information. In such situations, Customer remains responsible for the acts or omissions of its client’s use of the Service as it they were Customer’s own and Customer must ensure that its client enters into a set of terms that are pre-approved by Tax Optimiser). Subject to the foregoing, Customer agrees that it will not: (a) permit any third party (other than its professional tax or finance advisors) to access and/or use the Service; (b) rent, lease, loan, or sell access to the Service to any third party; (c) interfere with, disrupt, alter, translate, or modify the Service or any part thereof, or create an undue burden on the Service or the networks or services connected to the Service; (d) reverse-engineer the Service (except to the extent that such restriction on reverse engineering is prohibited by law and then Customer shall provide Tax Optimiser with prompt written notice prior to any such action), or access the Service to build a competitive product or service; or (e) introduce software or automated agents or scripts to the Service so as to produce multiple accounts, generate automated searches, requests and queries, or to strip or mine data from the Service. Customer will limit access to the Service to its own authorised employees, and will administer account information and passwords accordingly. Service accounts and passwords may not be used by more than one individual user. Tax Optimiser reserves the right to terminate any account that Tax Optimiser reasonably determines has been used by an unauthorised third party.
2.2 Service Provision. During the term of this Agreement, Tax Optimiser will be responsible for hosting, maintaining, and operating the Service (including the web portal through which Customer may access the Service); provided, however, that Customer will be responsible for providing its own web browser software, computers and other client browsing devices, and Internet access. The Parties acknowledge and agree that, while Tax Optimiser will use commercially reasonable endeavours to maintain uptime and availability of the Service web portal that is consistent with good industry practice. The continuous or uninterrupted availability of the web portal itself is not essential to the value of the Service.
2.3 Advertisements and Third Party links. The Service may, from time to time, contain advertisements and links to and from the websites of professional advisors, advertisers and affiliates (Third Parties). We do not accept any responsibility or liability for the acts or omissions of the Third Parties.
2.4 Ownership. The Service, all software, algorithms, methodologies, and other technology used by Tax Optimiser to provide the Service (including the Tax Optimiser application), and all intellectual property and proprietary rights in all of the foregoing, is the exclusive property of Tax Optimiser and its suppliers. Customer hereby assigns to Tax Optimiser any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer related to the Service. All rights not expressly granted to Customer are reserved to Tax Optimiser.
3. TAX OPTIMISER DATA
3.1 Customer Use of Tax Optimiser Data. Subject to the terms and conditions of this Agreement, Tax Optimiser hereby grants to Customer a non-exclusive, non-transferable licence to (a) access and download the Tax Optimiser Data using the Service, during the term of this Agreement; (b) reproduce and create excerpts of such Tax Optimiser Data for use in Customer’s own reports; (c) distribute such Tax Optimiser Data (as excerpted in Customer’s own reports) throughout Customer’s internal organisation, for its own internal use purposes; and (d) distribute limited excerpts of such Tax Optimiser Data (as excerpted in Customer’s own reports) solely to its third-party contractors, solely for the purpose of analysis tax matters. Customer will credit Tax Optimiser as the source of all Tax Optimiser Data in all publications in which Tax Optimiser Data is included or excerpted, and will reproduce all applicable copyright and other proprietary notices in all copies of the Tax Optimiser Data that it makes. Under no circumstances may Customer distribute any Tax Optimiser Data to third parties on a standalone basis.
3.2 Sanitisation of Customer Reports. Tax Optimiser agrees that before it discloses any Customer Report to any third party (including, without limitation, by archiving the contents of such report in the portions of the Tax Optimiser tax information database that are accessible by other customers of Tax Optimiser), it will first (a) remove all instances of Customer’s name from the substantive contents of such report; and (b) remove any references that identify Customer as the source of the Tailored Search Keywords that produced the Customer Report.
3.3 Ownership. Subject to the rights expressly granted to Customer in Clause 3.1 (Customer Use of Tax Optimiser Data) above, as between Customer and Tax Optimiser, all Tax Optimiser Data, and all intellectual property and proprietary rights therein, shall be exclusively owned by Tax Optimiser. There are no implied licences granted under this Agreement, and all rights not expressly granted are reserved.
4. FEES AND PAYMENT
4.1 Fees. In consideration of Customer’s use of the Service Customer shall pay the applicable fees set out in the pricing table accompanying this Agreement or as otherwise agreed in writing with Tax Optimiser. All payment obligations are non-cancellable and all amounts paid are non-refundable.
4.2 Payment Terms. Tax Optimiser shall invoice Customer annually in advance for the use of the Service. Any amounts not paid when due shall bear interest at the rate of 6% per annum above the base rate of the Bank of England, or the maximum legal rate, if less. Tax Optimiser shall be entitled to withhold performance and discontinue access to the Service until all amounts due are paid in full. Tax Optimiser’s fees are exclusive of all taxes, levies or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on Tax Optimiser’s income.
5.1 “Confidential Information” means the Tax Optimiser Data and any nonpublic information regarding the Service. Customer will not use any Confidential Information for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information only to (a) the employees and agents of Customer who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than Customer’s duty hereunder; and (b) third parties, only in the form of limited excerpts, to the extent permitted by the licence expressly set out in Clause 3.1. Customer will protect the Confidential Information from unauthorised use, access, or disclosure in the same manner as Customer protects its own confidential or proprietary information of a similar nature and with no less than reasonable care. Customer will be allowed to disclose the Confidential Information to the extent that such disclosure is (i) specifically approved in writing by Tax Optimiser, (ii) necessary in the course of legal proceedings for Customer to defend itself or to enforce its rights under this Agreement; or (iii) required by law or by the order of a court or similar judicial or administrative body, provided that Customer notifies Tax Optimiser of such required disclosure promptly and in writing and cooperates with Tax Optimiser, at Tax Optimiser’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. Customer will return to Tax Optimiser or destroy all tangible copies of Confidential Information in Customer’s possession or control and permanently erase all electronic copies of Confidential Information promptly upon the expiration or termination of this Agreement, whichever occurs first, except to the extent necessary to permit Customer to exercise any licence right to the Tax Optimiser Data expressly surviving under Clause 7.3 (Effect of Termination).
6. WARRANTY DISCLAIMER
6.1 The Service and the Tax Optimiser Data are provided “AS IS,” and Tax Optimiser makes no (and hereby disclaims all) warranties, representations, or conditions, whether written, oral, express, implied or statutory, including, without limitation, any implied warranties of satisfactory quality, title, noninfringement, or fitness for a particular purpose, with respect to the use, misuse, or inability to use the Service (in whole or in part), the Tax Optimiser Data, or any other products or services provided to Customer by Tax Optimiser. Tax Optimiser does not warrant that searches performed by the Service will reveal accurate or all tax information, that the Tax Optimiser Data will be accurate or complete, or that operation of the Service shall be uninterrupted or error-free.
6.2 Tax Optimiser does not provide tax, legal or accounting advice. The Tax Optimiser Data is prepared for informational purposes only, and is not intended to provide, and should not be relied on for, tax, legal or accounting advice. Tax Optimiser services and/or documentation may not meet all tax authority standards or other regulatory requirements. Customer is solely responsible for ensuring that its use of Tax Optimiser complies with all applicable laws. You should consult your own tax, legal and accounting advisors before engaging in any transaction or acting on any information provided by Tax Optimiser or via the Tax Optimiser application.
6.3 Tax Optimiser functionality is only available in the UK. The parties acknowledge and agree that certain data supplied via Tax Optimiser is compiled from third party sources, including governmental and regulatory organisations and commercial enterprises and are not necessarily a complete or accurate depiction of the current, in-force tax restrictions or regulations.
7. TERM AND TERMINATION
7.1 Term. This Agreement will enter into effect on the Effective Date and continue for an initial term of one (1) year (the Initial Term). Upon the expiration of the Initial Term, this Agreement shall automatically renew for successive renewal terms of one (1) year each (all such renewal terms, together with the Initial Term, the Term), unless either Party gives written notice of its intent not to renew this Agreement no later than sixty (60) days prior to the end of the Initial Term or the then-current renewal term.
7.2 Termination. Each Party may immediately terminate this Agreement upon written notice if the other Party has materially breached any provision of this Agreement and failed to cure such breach within thirty (30) days after written notice specifying such breach from the non-breaching Party.
7.3 Effect of Termination. Upon expiration or termination of this Agreement, Customer’s access to the Service and licence to the Tax Optimiser Data shall be terminated. Notwithstanding the foregoing, except in the event of termination for Customer’s material breach, Clause 3.1 (Customer Use of Tax Optimiser Data) shall survive termination or expiration of this Agreement solely with respect to Tax Optimiser Data that had been rightfully downloaded by Customer prior to such expiration or termination. In addition, Clauses 1 (Definitions), 2.4 (Ownership), 4 (Fees and Payments) (with respect to payment obligations incurred during the term of this Agreement), 5 (Confidentiality), 6 (Warranty Disclaimer), 7.3 (Effect of Termination), 8 (Limitation of Liability), and 9 (Miscellaneous Terms) of this Agreement will survive any such expiration or termination.
8. LIMITATION OF LIABILITY
8.1 Nothing in this Agreement shall limit or exclude Tax Optimiser’s liability for (a) death or personal injury caused by its negligence; or (b) for fraud or fraudulent misrepresentation; or (c) any other liability that cannot be excluded or limited by English law.
8.2 In no event shall Tax Optimiser be liable to Customer for any special, indirect, incidental or consequential damages, or any damages or costs due to any direct or indirect loss of profits, data, use or goodwill, personal or property damage resulting from or in connection with this Agreement, the Service, or the use or inability to use the Service, regardless of the cause of action or the theory of liability, whether in tort (including negligence), contract, or otherwise, even if Tax Optimiser has been notified of the likelihood of such damages. Tax Optimiser will not be liable for Customer’s errors in its tax returns or for late submissions, including during periods of Tax Optimiser’s system maintenance and downtime.
8.3 The maximum aggregate liability of Tax Optimiser arising out of or in any way connected to this Agreement whether in contract, tort (including negligence) or otherwise, shall not exceed the fees paid by Customer to Tax Optimiser during the twelve (12) months immediately preceding the first claim to arise under this Agreement. The existence of one or more claims under this Agreement will not increase Tax Optimiser’s liability. The Parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the Parties.
8.4 In accordance with the applicable laws, responsibility for submitting tax returns to the tax authorities, including for the Customer not intervening with ‘digital links’ (meaning an electronic or digital transfer or exchange of data between software programs, products or applications under HMRC’s Making Tax Digital requirements), rest with the Customer and Tax Optimiser shall not be liable for Customer’s acts or omissions.
9. MISCELLANEOUS TERMS
9.1 Customer’s relationship to Tax Optimiser is that of an independent contractor, and neither Party is an agent or partner of the other.
9.2 This Agreement and any dispute or claim arising out of it or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England. Each Party irrevocably agrees that the courts of England have exclusive jurisdiction to any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims). Customer shall always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Service and Tax Optimiser Data hereunder.
9.3 No one other than a party to this Agreement or their successors and permitted assignees shall have any right to enforce any of its terms.
9.4 Customer is responsible for updating Customer’s account to provide Tax Optimiser with Customer’s most current e-mail address. In the event that the last e-mail address Customer have provided to Tax Optimiser is not valid, or for any reason is not capable of delivering to Customer any notices required by this Agreement, Tax Optimiser’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described on the notice. Any notice provided to Tax Optimiser pursuant to this Agreement should be sent by registered mail to firstname.lastname@example.org.
9.5 If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
9.6 Neither Party shall assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other Party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either Party may assign this Agreement in connection with a merger, acquisition, reorganisation or sale of all or substantially all of its assets, or other operation of law, without any consent of the other Party. This Agreement shall be binding upon the Parties and their respective successors and permitted assigns.
9.7 Any delay in the performance of any duties or obligations of either Party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a strike, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such Party, provided that such Party uses reasonable endeavours, under the circumstances, to notify the other Party of the cause of such delay and to resume performance as soon as possible.
9.8 This Agreement is the final, complete and exclusive agreement of the Parties with respect to the subject matter hereof and supersede and merge all prior discussions between the Parties with respect to such subject matter. Each Party acknowledges that, in entering into this Agreement, it does not rely on any statement, representation (whether innocent or negligent), assurance or warranty of any person (whether a party to the Agreement or not) other than as expressly set out in this Agreement.
9.9 No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorised signatory of Customer and an officer of Tax Optimiser.
9.10 In this Agreement the following rule of interpretation shall apply: (a) unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular; (b) Clause headings shall not affect the interpretation of this Agreement; (c) a reference to a person shall include individuals, firms, partnerships, companies, governments, non-governmental bodies and any organisation having legal capacity; (d) a reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established; (e) a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time; (f) any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; (g) references to Clauses are to the Clauses of this Agreement; and (h) a reference to writing or written includes e-mail.