TAX PRODIGY EVALUATION TERMS AND CONDITIONS AGREEMENT
The Programs, Content and Services that you are about to access (as defined further below) are offered by Tax Prodigy, LLC, a Minnesota limited liability company (“Vendor”) with its principal address at 5317 1st Avenue South, Minneapolis, MN 55419, to you (either as an individual or on behalf of the entity you represent, if you are authorized to act on its behalf) (hereinafter “you” or “Customer”) for use in accordance with the terms and conditions below.
Please read the terms of this Agreement (as defined below) carefully. By clicking the “AGREE” button or checkbox [ntd: modify as needed based on implementation of clickwrap] below or by using the Programs, Content, and Services provided by Vendor, you represent that you have read, understand, and agree to be bound by the terms and conditions of this Agreement If you do not accept these terms and conditions, then you are not authorized to download, install, activate, access, or use any of the Programs, Content, or Services.
Definitions. As used in this Agreement, the following terms shall have the following meaning:
“Agreement” means this Tax Prodigy Evaluation Terms and Conditions Agreement.
“Content” means the audio and visual information, documents, software, products, and services contained or made available to Customer in the course of using the Service.
“Customer Data” means any data, information, or material provided or submitted by Customer to the Service in the course of using the Service.
“Effective Date” means the earlier of either the date Customer accepts this Agreement or the date Customer begins using the Service.
“Intellectual Property Rights” means any unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
“License Term(s)” means the period during which Customer is licensed to use the Service for evaluation purposes. Unless otherwise provided, the License Term shall be a period of thirty (30) days from the Effective Date.
“Programs” means Vendor’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs, and other tangible or intangible technical material or information) made available to Customer by Vendor in providing the Service.
“Service(s)” means the specific edition of Vendor’s tax accounting Programs and related services, developed, operated, and maintained by Vendor, accessible via http://www.taxprodigy.com or another designated website or IP address, or ancillary online or offline products and services provided to Customer by Vendor for evaluation purposes only, to which Customer is being granted access under this Agreement, including the Programs and the Content.
License Grant and Restrictions.
(a) Grant of License. Vendor hereby grants Customer a nonexclusive, nontransferable right to use the Service(s) and any updates thereto, solely for Customer’s own evaluation purposes only, subject to the terms and conditions of this Agreement. All rights not expressly granted to Customer are reserved by Vendor and its licensors.
(b) License for Evaluation Purposes Only. Customer understands and agrees that Vendor is providing the Service to Customer for internal evaluation purposes only, or for facilitating the evaluation of Vendor’s Service, and therefore is provided to Customer “AS IS” and “WITH ALL FAULTS.” Customer agrees that its use of the Service, Programs, and Content will be for evaluation purposes only and will not be used, disseminated, or relied on for purposes of any tax, accounting, or legal filing. Customer agrees that it will not use the Service for any tax accounting or tax advice purpose. Vendor makes no guarantee, representations, or warranties as to the validity of the accuracy or completeness of any information or data generated in connection with Customer’s use of the Service. Notwithstanding any other term of this Agreement, Vendor shall have no responsibility for any use of the Service that is not purely for internal evaluation purposes.
(c) Restrictions on Competitors. Customer may not access the Service if Customer is a competitor of Vendor, except with Vendor’s prior written consent. In addition, Customer may not access the Service for purposes of monitoring its availability, performance or functionality, for any other benchmarking or competitive purposes, or in the presence of a competitor of Tax Prodigy.
(d) General Restrictions. Customer shall not: (i) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. Additionally, Customer may use the Service only for Customer’s evaluation purposes and shall not: (i) send, spam, or otherwise distribute duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
3. Customer Responsibilities. Customer is responsible for all activity occurring in connection with Customer’s use of the Service and shall abide by all applicable local, state, national, and foreign, laws, treaties and regulations in connection with Customer’s use of the Service, including those related to data privacy, international communications, and the transmission of technical or personal data. Customer shall: (i) notify Vendor immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Vendor immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by Customer; and (iii) not impersonate another Vendor user or provide false identity information to gain access to or use the Service.
4. Account Information and Data. Vendor does not own any Customer Data. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Vendor shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data.
5. Intellectual Property Ownership. Vendor (and its licensors, where applicable) shall exclusively own all right, title, and interest, including all related Intellectual Property Rights, in and to the Programs, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Customer or any other party relating to the Service. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Service, the Programs or the Intellectual Property Rights owned by Vendor. Vendor’s name, Vendor’s logo, and the product names associated with the Service are trademarks of Vendor or third parties, and no right or license is granted to use them.
6. Termination. This Agreement commences on the Effective Date and continues through the balance of the License Term. Notifications provided through the Service indicating the remaining number of days in the free trial shall constitute notice of termination. Vendor, in its sole discretion, may terminate Customer’s use of the Service if Customer breaches or otherwise fails to comply with this Agreement. In addition, Vendor may terminate Customer’s access to the Service at any time, in its sole discretion. Customer agrees and acknowledges that Vendor has no obligation to retain the Customer Data at the end of the License Term.
7. Representations and Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Customer represents and warrants that Customer has not falsely identified Customer nor provided any false information to gain access to the Service and that Customer’s billing information is correct.
8. Indemnification. Customer shall indemnify and hold Vendor, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by Customer of Customer’s representations and warranties; or (iii) a claim arising from the breach by Customer of this Agreement.
9. Tax Advice. THE PROGRAMS, CONTENT AND SERVICES ARE SOLELY BEING PROVIDED BY VENDOR TO CUSTOMER FOR THE PURPOSES OF ASSISTING CUSTOMER IN PERFORMING ITS OWN TAX ACCOUNTING SERVICES. VENDOR DOES NOT PROVIDE SERVICES AS A PROFESSIONAL EXPERT REGARDING YOUR CUSTOMER DATA OR REGARDING OTHER TAX, ACCOUNTING, OR OTHER LEGAL INFORMATION. NEITHER THE PROGRAMS, CONTENT OR SERVICES NOR VENDOR ARE PROVIDING ANY PROFESSIONAL TAX ADVICE, ACCOUNTING ADVICE, OR LEGAL ADVICE AND THE PROGRAMS, CONTENT, AND SERVICES ARE IN NO WAY SUBSTITUTES FOR ASSISTANCE FROM LEGAL, TAX, ACCOUNTING, OR OTHER QUALIFIED PROFESSIONALS. ALL OUTPUT FROM THE MATERIAL PREPARED BY THE PROGRAMS, CONTENT AND SERVICES SHOULD BE THOROUGHLY REVIEWED BY COMPETENT TAX AND LEGAL ADVISORS. NONE OF THE PROGRAMS, CONTENT OR SERVICES CONSTITUTE A FORMAL WRITTEN OPINION ABOUT SPECIFIC REGULATORY OR LEGAL REQUIREMENTS OR THE LIKELY TAX TREATMENT OF THE RETURNS AND RELATED MATERIALS PREPARED AND ANY RELIANCE ON THE OUTPUT THEREFROM IS NOT REASONABLE. NONE OF THE PROGRAMS, CONTENT OR SERVICES SHOULD BE USED FOR THE PURPOSE OF AVOIDING TAXATION OR TAX PENALTIES OR FOR THE PURPOSE OF PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TAX RELATED MATTERS.
10. Disclaimer of Warranties. VENDOR AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY, OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. VENDOR AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (B) THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER THROUGH THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (E) ERRORS OR DEFECTS WILL BE CORRECTED; OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO CUSTOMER STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY VENDOR AND ITS LICENSORS.
11. Internet Delays. VENDOR’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. VENDOR IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
12. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL VENDOR AND/OR ITS AFFILIATES BE LIABLE TO ANYONE FOR ANY DIRECT INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR, OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13. Notice. Vendor may give notice by means of a general notice on the Service, an email to Customer’s address on record in Vendor’s account information, or by written communication sent by first class mail or pre-paid post to Customer’s address on record in Vendor’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). Customer may give notice to Vendor (such notice shall be deemed given when received by Vendor) at any time by any of the following: letter sent by confirmed facsimile to Vendor at the following fax number: (877) 487-1829; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Vendor at the following address:
Tax Prodigy, LLC
5345 1st Avenue South
Minneapolis, MN 55419
Attn: Nicholas Frank
with a copy (which will not constitute notice) to:
Winthrop & Weinstine, P.A.
225 South Sixth Street, Suite 3500
Minneapolis, MN 55402
Attn: Dean D. Willer
(a) Governing Law; Venue. The laws of the State of Minnesota, without giving effect to principles of conflict of laws, shall govern all matters arising under this Agreement, including tort claims. Any dispute arising under or in connection with this Agreement shall be subject to the exclusive jurisdiction of the state and/or federal courts located in Hennepin County, Minnesota.
(b) Entire Agreement. This Agreement constitutes the entire agreement of the parties relating to the subject matter of this Agreement and supersedes all other oral or written agreements or policies relating thereto.
(c) Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
(d) Waiver. No waiver of satisfaction of a condition or nonperformance of an obligation under this Agreement will be effective unless it is in writing and signed by the party(ies) granting the waiver, and no such waiver will constitute waiver of satisfaction of any other condition or nonperformance of any other obligation.
(e) Modification to Terms. Vendor reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. Customer is responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute Customer’s consent to such changes.