SOFTWARE AS A SERVICE AGREEMENT

TaxTaker.com Service Agreement

PLEASE READ THIS AGREEMENT BEFORE USING TAXTAKER’’S SERVICES. BY ACCESSING OR USING TAXTAKER’S TAX CREDIT SOFTWARE OR SERVICES OFFERING, YOU (“the Customer”) SIGNIFY ACCEPTANCE OF AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICES. IF THE PARTIES HAVE A FULLY EXECUTED AGREEMENT THAT EXPRESSLY GOVERNS ORDERS FOR TAXTAKER’S SOFTWARE AS A SERVICE AGREEMENT, SUCH AGREEMENT SHALL SUPERSEDE THIS AGREEMENT. 

This agreement (“Agreement”) is made and entered as of the Effective Date (as defined herein) by and between TaxTaker, Inc., a Texas corporation, with offices at 1112 E 7th St. Austin, Texas 78701 (“TaxTaker”). TaxTaker  and Customer agree that the following terms and conditions will apply to the services provided under this Agreement and Orders placed thereunder.

1. Definitions.

“Customer Information” means all information and data submitted to TaxTaker by or on behalf of Customer in connection with the creation and management of Customer’s account for the Services.

“TaxTaker” means TaxTaker’s proprietary software, websites, and technologies that streamline the extraction of data and perform calculations to generate Internal Revenue Service (“IRS”) forms needed to take advantage of Research and Development (“R&D”) tax credits. 

“TaxTaker Services” means (1) access to the TaxTaker and any related services provided by TaxTaker to Customer, as specified on in this Agreement. Services. During the Term (as defined herein), subject to the terms and conditions of this Agreement for such Services, TaxTaker shall make the Services available to Customer in accordance with an executed Software License Schedule.

“Training Services”  means if included in the Services, as set forth on a Software License Schedule, training will be provided online, at TaxTaker’s offices, or another location agreed upon by both Parties. Training will be scheduled at a time mutually agreed upon by the parties. Training will be conducted in English. Customer will be responsible for expenses (including travel expenses) incurred by both Customer and TaxTaker with respect to training Customer’s personnel.

“TaxTaker Post Set-up Services” means TaxTaker may provide post set-up implementation services, which may include set-up, user administrative configuration,identifying and qualifying clients or projects eligible for  R&D credits, cost benefit analysis and feasibility of use, analyze documents including tax returns, ownership structure, entity and organization charts, project information to derive eligible activities, value of qualified expenditures all as set forth on the applicable Software License Schedule. 

“TaxTaker Technical Support” means TaxTaker will provide support and maintenance services pursuant as set forth on the Software License Schedule. These services may consist of: (a) responding to inquiries from Customer concerning the performance, functionality, and operation of the Services; (b) responding to reported problems and performance deficiencies in the Services; (c) diagnosing problems and performance deficiencies in the Services; (d) attempting to resolve problems and performance deficiencies in the Services; and (e) meeting any service level standards of availability and response time set forth in the Software License Schedule. 

“Substantiation Reports” means reports compiling contemporaneous records for which the customers inputs  serve as a backup of data for recordkeeping. Those documents that are retained in sufficiently usable form and detail  for the customer to substantiate the claimed R&D expenditures eligible for credit.  Actual amounts of such expenses and affirmatively raised deductions or credits.

“Audit Protection Plan”  If Customer wishes to obtain additional assistance in the event of an audit, Customer may opt-in to TaxTaker’s Audit Protection Plan for an additional fee as specified in Annex 1 to this agreement.

“Updates and Functionalities” means Customer acknowledges that, from time to time, TaxTaker may apply updates to the Services and that such updates may result in changes in the appearance and/or functionality of such TaxTaker and Services (including the addition, modification, or removal of functionality, features, or content). Excluding the addition of wholly new products, TaxTaker will provide, implement, configure, install, support, and maintain at its own cost any and all updates, upgrades, enhancements, improvements, releases, corrections, bug fixes, patches, and modifications to the Services (collectively, the “Updates”). However, these releases do not include new Services, and TaxTaker may determine, in its sole discretion, the characterization of a release as an Update or new Service.

“License Start Date” means, for each Software License Schedule, the earlier of (i) the date set forth on the Software License Schedule or (ii) the first date on which Customer. is granted access to or provided the Services purchased pursuant to the Software License Schedule.

“Tax Data” means data provided by Customer regarding Customer’s applicable tax information needed to determine eligibility for and the amount of any Federal and or State specialty tax incentives potentially available to Customer.

2. Customer Obligations. 

2.1 Requirements. Customer agrees  that it will:

comply with this Agreement;

use commercially reasonable efforts to prevent unauthorized access to or use of the TaxTaker or Services, including keeping passwords and user names confidential and not permitting any third party to access or use its user name, password, or Customer account for the Services;

be solely responsible and liable for all activity conducted through its Customer account in connection with the Services;

promptly notify TaxTaker within (48) hours if Customer becomes aware of or reasonably suspects any security breach, including any loss, theft, or unauthorized disclosure or use of Customer’s user name, password, or Customer account; and

use or access the Services only in accordance with applicable laws and government regulations.

2..2 Restrictions. Customer agrees that it will not:

(i)make the TaxTaker or Services available to any third-party;

(ii)demonstrate, sell, trade, market, or otherwise transfer the TaxTaker or Services, in whole or in part, or anything confusingly similar thereto to any third-party;

(iii)publish or otherwise disclose information, including Confidential Information, or data related to the functionality, performance, or quality of the TaxTaker or Services;

(iv)use the Services to store or transmit any content that may be infringing, defamatory, threatening, harmful, or otherwise tortious or unlawful, including any content that may violate intellectual property, privacy, rights of publicity, or other laws, or send spam or other unsolicited messages in violation of applicable law;

(v)upload to, or transmit from, the TaxTaker or Services any data, file, software, or link that contains or redirects to a virus, Trojan horse, worm, or other harmful component;

(vi)attempt to reverse engineer, de-compile, reuse, hack, disable, interfere with, disassemble, modify, copy, translate, create derivative works, or disrupt the features, functionality, integrity, or performance of the TaxTaker or Services (including any mechanism used to restrict or control the functionality of the TaxTaker or Services), any third-party use of the TaxTaker or Services, or any third-party data contained therein (except to the extent such restrictions are prohibited by applicable law);

(vii) attempt to gain unauthorized access to the TaxTaker, Services or related systems or networks or to defeat, avoid, bypass, remove, deactivate, or otherwise circumvent any software protection or monitoring mechanisms of the TaxTaker, or Services; access the TaxTaker or Services in order to build a similar or competitive product or service or copy any ideas, features, functions, or graphics of the TaxTaker or Services; or authorize, permit, or encourage any third party to do any of the above.

2.3 Suspension. Customer agrees that TaxTaker may temporarily suspend or terminate its access to the TaxTaker or Services for a violation of this Section 3 or for any abusive practices that degrade the performance of any Service for Customer and/or other TaxTaker customers. 

2.4 Non-Exclusivity. Customer acknowledges that the rights granted to it under this Agreement and any Software License Schedule are non-exclusive and that nothing in this Agreement or any Software License Schedule will be interpreted or construed to prohibit or in any way restrict TaxTaker’s right to license, sell, or otherwise make available the TaxTaker or Services to any third party or perform any services for any third party.

3.  Intellectual Property.

3.1 TaxTaker and Services. As between Customer and TaxTaker, TaxTaker retains all right, title, and interest in and to the TaxTaker and Services. Nothing herein shall be construed to restrict, impair, encumber, alter, deprive, or adversely affect the Services or any of TaxTaker’s rights or interests therein or any other TaxTaker intellectual property, brands, information, content, processes, methodologies, products, goods, services, materials, or rights, tangible or intangible. All rights, title, and interest in and to the Services not expressly granted in this Agreement are reserved by TaxTaker. Marks displayed on the TaxTaker TaxTaker and/or pursuant to delivery of TaxTaker services, including but not limited to, TAXTAKER, are trademark of or otherwise owned by TaxTaker.  The TaxTaker, including the look and feel, color selections, layout, and arrangement, is the trade dress of TaxTaker.  Customer is prohibited from using or attempting to register TaxTaker’s trademarks, service marks, and trade dress, or any colorable imitation thereof, to indicate the source of, sponsorship of, approval of, affiliation with, connection with, or association with Customer’s goods and services unless otherwise authorized under this Agreement or with the prior written consent of TaxTaker.

3.2 Feedback. Customer may from time to time provide suggestions, comments, or other feedback to TaxTaker with respect to the Services (“Feedback”). Feedback, even if designated as confidential by Customer and, notwithstanding Section 6 of this Agreement, shall not create any confidentiality obligation for TaxTaker. Customer grants to TaxTaker a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and exploit the Feedback for any purpose.

3.3 Customer and Tax Data. Customer hereby grants TaxTaker a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 11.1) license, with right of sublicense, to access, use, reproduce, electronically distribute, transmit, perform, format, display, store, archive, index the Customer’s Tax Data for the purpose of providing and developing the TaxTaker and Services to Customer and supporting Customer’s use of the TaxTaker and Services. TaxTaker may also use Tax Data for the purpose of commercial offerings, provided that when doing so, TaxTaker shall only use Tax Data about a Customer in an anonymized and aggregated way. Subject only to the limited license expressly granted herein, Customer shall retain all right, title and interest in and to, and all intellectual property rights in, the Customer Information. Nothing in this Agreement will confer on TaxTaker any right of ownership or interest in or to, or the intellectual property rights in the Customer Information.

3.4 Privacy Policy. Customer is solely responsible for the Customer Information submitted to the TaxTaker.  TaxTaker may use the Customer Information to provide the Services, as provided herein and as provided in TaxTaker’s privacy policy, which is incorporated herein, published at https://www.taxtaker.com/privacy-policy (the “Privacy Policy”) or as may be required by law. 

4.  Fees and Payment.

4.1 Fees. Customer will pay all fees as and when described in the Software License Schedule(s) (the “Fees”).

4.2 Invoicing. TaxTaker shall invoice Customer for the Fees in the currency set forth on the applicable Software License Schedule. Unless otherwise stated on the Software License Schedule, all invoices shall be payable upon presentation and prior to any commencement of Services. Any disputed amounts shall not affect payment of non-disputed amounts. Customer shall make payments to TaxTaker via the entity and address set forth in the Software License Schedule and any subsequent invoice, either via credit card, debit card, bank check, wire, or automated clearing house (“ACH”) and will collect a Credit Card  for each Customer.

4.3 Late Payment. If any amounts invoiced hereunder as Fees or otherwise are not received by TaxTaker by the due date, then at TaxTaker’s discretion, such charges may accrue late interest at the rate of 12% per year or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. In addition, upon 30 days’ written notice to Customer provided after the due date, TaxTaker may suspend Customer’s access to the Services, if any, if TaxTaker has not received the amounts invoiced hereunder at the expiration of such 30-day period.

4.4. Taxes and Withholdings. Customer is responsible for paying all taxes, assessments, charges, fees, and levies that may be levied or based upon Customer’s subscription to the Services, and any interest, fines, and penalties with respect thereto, imposed by any governmental authority.  If TaxTaker has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 4.6, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides TaxTaker with a valid tax exemption certificate authorized by the appropriate taxing authority.

5.  Confidential Information and Security Requirements.

5.1 Confidential Information. Subject to the terms of this Agreement, both TaxTaker and User agree to maintain the confidentiality of each other’s “Confidential Information.”  Confidential Information includes: (a) Each party’s proprietary system offerings, including the TaxTaker and Services, along with documentation and plans related thereto; (b) Passwords, authorization keys, or codes used to access or operate TaxTaker; (c) Any results, Tax Data, or statistics collected through use of TaxTaker; or (d) Any business information submitted to, accessed in or otherwise made available via TaxTaker, as well as any information that is either marked physically or identified orally as “confidential” or “proprietary” at the time of disclosure.   Confidential Information does NOT include information that: (i) is or becomes generally known or available to the public through no act or omission of the party receiving Confidential Information; (ii) is rightfully known by the receiving party prior to receiving such Confidential Information from the disclosing party and without restriction as to use or disclosure; (iii) is independently developed by the receiving party without use of the disclosing party’s Confidential Information and without breach of this Agreement; or (iv) is rightfully received by the receiving party from a third party without restriction on use or disclosure.  The existence of this Agreement, the existence of TaxTaker and the nature of this relationship between the Parties is not considered Confidential Information.  Such Confidential Information shall only be used as necessary to exercise the rights and obligations under this Agreement.  Nothing herein shall preclude either Party from disclosing Confidential Information pursuant to a Court Order or on a confidential basis, with the same restrictions as set forth herein, to legal and financial advisors.  

5.2 Security Requirements. TaxTaker has implemented technical and organizational security measures consistent with the prevailing industry standards. However, TaxTaker cannot guarantee that unauthorized third parties will never be able to defeat those measures and expressly denies any responsibility for damages, monetary or otherwise, resulting from unauthorized third party access to Customer’s account or use, alteration, or disclosure of the Customer Information or Tax Data.

6. Term and Termination.

6.1 Term of Agreement. This Agreement shall commence on the Service Start Date (the “Effective Date”) and shall continue in effect until all Software License Schedules have expired or this Agreement has been terminated in accordance with this Article 6 (the “Term”).

6.2 Term of Software License Schedules. The term of each Software License Schedule shall start on the Service Start Date specified on the Software License Schedule and shall continue for the term specified therein. Except as expressly stated otherwise in a Software License Schedule, all Software License Schedules shall automatically renew for subsequent one-year renewal periods, unless a Party gives the other Party written notice of non-renewal at least 60 days prior to the end of the then-current term. Upon renewal, TaxTaker reserves the right to increase the Fees for Services by providing Customer written notice thereof (which notice may be provided by email) at least 30 days prior to the end of the then-current term.

6.3 Termination for Cause. A Party may terminate this Agreement for cause upon 30 days’ written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period; or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.  No refund shall be issued in the event of termination for cause by TaxTaker.

6.4 Termination for Convenience.  TaxTaker may terminate this Agreement for convenience upon 30 days’ written notice to the Customer.  In the event of termination for convenience, at TaxTaker’s discretion, TaxTaker will issue the Customer a pro-rata refund.

6.5 Effects of Termination. Upon termination of this Agreement for any reason, all Software License Schedules will automatically terminate and: (i) Customer will immediately cease all use of the Services; (ii) Customer will have no further access to its Customer account provided by TaxTaker; and (iii) Customer will pay TaxTaker all unpaid Fees owing to TaxTaker. If Customer terminates this Agreement in accordance with Section 7.3, TaxTaker will refund to Customer any unearned Fees that Customer paid in advance for the Services. If TaxTaker terminates this Agreement in accordance with Section 7.3, then, without limiting any other remedies that may be available, Customer will pay any unpaid Fees covering the remainder of the term of each Software License Schedule after the date of termination. In no event will termination relieve Customer of its obligation to pay any amounts and Fees payable to TaxTaker for the period prior to the date of termination and other obligations that survive termination of this Agreement.

6.6 Survival. Any provision of this Agreement that, either by its terms or to give effect to its meaning, must survive, and such other provisions that expressly or by their nature are intended to survive termination shall survive the expiration or termination of this Agreement. Without limiting the foregoing, Section 5.1 as well as Articles 4, 6, 8-11 shall survive the expiration or termination of this Agreement.

7.  Warranties and Warranty Disclaimer.

7.1 Mutual Warranties. Each of TaxTaker and Customer represents and warrants that it has the power and authority to enter into this Agreement and to perform its obligations and duties under this Agreement and that doing so is not in conflict with any other agreement.

7.2 TaxTaker Warranties. TaxTaker warrants that (i) subject to Section 3.2, the Services will materially perform in accordance with the applicable documentation and the functionality of the Services will not be materially decreased during the term of the applicable Software License Schedule; and (ii) the Services do not knowingly contain any malicious code or viruses. For any breach of an above warranty, Customer’s exclusive remedies are those described in Section 7.3.

7.3 Disclaimer. SOME COUNTRIES AND JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION 8.3 MAY NOT APPLY TO CUSTOMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, TAXTAKER EXPRESSLY EXCLUDES AND DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TAXTAKER SPECIFICALLY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, AND NON-INFRINGEMENT, THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT THE SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ERROR-FREE. IN ADDITION, TAXTAKER DOES NOT WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM TAXTAKER OR ELSEWHERE NOR ANY COURSE OF DEALING WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.  

TAXTAKER DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY IN RELATION TO THE CONTENT MADE AVAILABLE THROUGH THE SERVICES, INCLUDING TAX DATA, CUSTOMER INFORMATION, AND ANY CONTENT OR SERVICES PROVIDED BY THIRD PARTIES. TAXTAKER DOES NOT CONTROL OR VET CUSTOMER INFORMATION AND IS NOT RESPONSIBLE FOR WHAT CUSTOMERS POST, TRANSMIT, OR SHARE ON OR THROUGH THE SERVICES. TAXTAKER IS NOT RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY THIRD-PARTY APPLICATIONS ASSOCIATED WITH OR UTILIZED IN CONNECTION WITH THE SERVICES, INCLUDING THE FAILURE OF ANY SUCH THIRD-PARTY APPLICATIONS. TAXTAKER EXPRESSLY DENIES ANY RESPONSIBILITY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR THE INFORMATION CONTAINED THEREIN AS WELL AS YOUR CUSTOMER ACCOUNT AND CUSTOMER INFORMATION.

8.  Mutual Indemnification.

8.1 Indemnification by TaxTaker. Subject to Customer’s compliance with Section 9.3 and to the maximum amount as set forth in Section 10, TaxTaker shall defend Customer from and against any and all third-party claims that the TaxTaker infringes a valid intellectual property right (a “Claim”) and shall indemnify Customer for any damages finally awarded against, and for reasonable attorneys’ fees incurred by, Customer in connection with any such Claim. 

Limitations. TaxTaker will have no liability for any Claim to the extent it arises from:

(i)   a modification of the TaxTaker or Services by or at the direction of Customer;

(ii) use of the TaxTaker or Services in violation of this Agreement or applicable law;

(iii) use of the TaxTaker or Services after TaxTaker notifies Customer to discontinue use because of an infringement or misappropriation claim;

(iv) the combination, operation, or use of the TaxTaker or Services with any other software, program, or device not provided or specified by TaxTaker to the extent such infringement would not have arisen but for such combination, operation, or use; or

(v) Customer’s use of the TaxTaker or Services in a manner that is inconsistent with its intended use.

Use of any version of the TaxTaker or Services other than the most current version provided by TaxTaker.

8.2 Remedies. If a Service has become, or in TaxTaker’s opinion is likely to become, the subject of any such Claim, TaxTaker may at its option and expense:

procure for Customer the right to continue using the Service as set forth hereunder;

replace or modify the Service or certain functionalities to make it non-infringing; or

if options (a) or (b) are not reasonably practicable, terminate either this Agreement or the Software License Schedule for such Service.

8.3 Sole Liability. This Section 8 sets forth TaxTaker’s sole liability (and Customer’s sole remedy) regarding infringement or misappropriation of third party rights.

8.4 Indemnification by Customer. Customer shall defend, indemnify, and hold harmless TaxTaker, its affiliates, directors, officers, employees, and agents from and against all claims, losses, damages, penalties, liability, and costs, including reasonable attorneys’ fees, of any kind or nature that are in connection with or arising out of a claim (i) alleging that Customer’s use of the Services infringes or violates the intellectual property rights, privacy rights, or other rights of a third party or violates any applicable law or (ii) relating to, or arising from, Customer Information, Tax Data, or Customer’s breach of Section 3.3 or Section 8.1.

8.5 Indemnification Procedure. The indemnified Party shall (i) promptly give written notice of the claim to the indemnifying Party; (ii) give the indemnifying Party sole control of the defense and settlement of the claim (provided that the indemnifying Party may not settle or defend any claim without the indemnified Party’s prior written consent unless it unconditionally releases the indemnified Party of all liability); and (iii) provide the indemnifying Party with reasonable cooperation and assistance at the indemnifying Party’s expense.

9.  Limitation of Liability.

EXCEPT AS EXPRESSLY PROVIDED HEREIN, IN NO EVENT SHALL TAXTAKER’S AGGREGATE LIABILITY TO CUSTOMER FOR ALL CLAIMS OF ANY KIND, INCLUDING ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BY STATUTE, CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE FEES PAID BY CUSTOMER FOR THE SERVICES.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL TAXTAKER, ITS DIRECTORS, EMPLOYEES, AGENTS, OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL USE, OR DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE TAXTAKER AND SERVICES OR ANY OTHER ASPECT OF THIS AGREEMENT, INCLUDING TAXTAKER’S COLLECTION OF TAX DATA AND INFORMATION FROM CUSTOMER VIA USE OF THE TaxTaker AND TAXTAKER’S ESTIMATED R&D TAX CREDIT CALCULATIONS. UNDER NO CIRCUMSTANCES WILL TAXTAKER BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR CUSTOMER’S ACCOUNT OR THE INFORMATION CONTAINED THEREIN.  

THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 9 IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF TAXTAKER WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS. NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR RESTRICT OR SHALL BE CONSTRUED AS EXCLUDING OR RESTRICTING THE LIABILITY OF TAXTAKER FOR (I) DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF TAXTAKER, ITS EMPLOYEES, OR ITS AGENTS; (II) WILLFUL MISCONDUCT OF TAXTAKER OR ITS EMPLOYEES; OR (III) ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.

CUSTOMER AGREES THAT CUSTOMER WILL ONLY BE ABLE TO PURSUE CLAIMS AGAINST TAXTAKER ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND CUSTOMER WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.  CUSTOMER FURTHER AGREES THAT ANY CAUSE OF ACTION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER’S USE OF TAXTAKER’S SERVICES MUST COMMENCE WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. 

TAXTAKER IS NOT PROVIDING, NOR DOES THE TaxTaker OR SERVICES CONSTITUTE, TAX ADVICE, BUT RATHER TAXTAKER IS A TaxTaker AS A SERVICE TO COMPUTE ESTIMATED R&D TAX CREDITS BASED UPON INFORMATION AND TAX DATA PROVIDED BY THE USER AND AID IN THE USER’S SUBMISSION OF NECESSARY IRS TAX FORMS.  IN THE EVENT OF AN IRS AUDIT, THE USER IS SOLELY RESPONSIBLE AND TAXTAKER IS NOT LIABLE FOR ANY DAMAGES RELATED THERETO. 

10.  General.

10.1 Assignment. Neither Party may assign nor otherwise transfer any of its rights nor obligations hereunder, whether by merger, sale of assets, change of control, operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld), and any attempted assignment without such consent will be void. Notwithstanding the foregoing, TaxTaker may assign this Agreement in its entirety (including all Software License Schedules), without consent of Customer, to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its shares or assets.

10.2 Relationship of the Parties. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither Party has any authority of any kind to bind the other in any respect.

10.3 Publicity. Customer agrees that TaxTaker may use Customer’s name and logo and may disclose that Customer is a customer of the Services in TaxTaker advertising, press, promotion, and similar public disclosures, including at trade shows and similar events. In addition to the foregoing, Customer hereby grants TaxTaker a non-exclusive license during the Term to list Customer’s name and display Customer’s logo as a TaxTaker customer on TaxTaker’s website.

10.4 Force Majeure. Except for payment obligations, neither Party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such Party’s reasonable control, including the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; and any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts.

10.5 Counterparts and Interpretation. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one single agreement between the Parties. Headings are for convenience only and are not to be considered in construing or interpreting this Agreement. This Agreement shall be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there shall be no presumption or interference against the Party drafting this Agreement in construing or interpreting the provisions hereof.

10.6 Amendment. No amendment, supplement, restatement, or termination of any provision of this Agreement shall be valid unless it is in writing and signed by each Party to this Agreement at the time of the amendment, supplement, restatement, or termination.

10.7 Severability. Each provision of this Agreement is severable. If any provision of this Agreement is or becomes illegal, invalid, or unenforceable in any jurisdiction, the illegality, invalidity, or unenforceability of that provision will not affect the legality, validity, or enforceability of the remaining provisions of this Agreement or of that provision in any other jurisdiction.

10.8 Notices. For purposes of service messages and notices about the Services, TaxTaker may place a banner notice across the Services or website to alert Customer. Alternatively, notice may consist of an email from TaxTaker to an email address associated with Customer’s account, even if TaxTaker has other contact information. For communication about Customer’s account and services associated with TaxTaker, TaxTaker may contact Customer through its Customer account or through other means including email, mobile number, telephone, or delivery services such as the postal service. Customer acknowledges and agrees that TaxTaker shall have no liability associated with or arising from Customer’s failure to maintain accurate contact or other information, including, but not limited to, Customer’s failure to receive critical information about the Services. Notices to TaxTaker must be delivered by email to info@taxtaker.com with a duplicate copy sent via registered mail to the following address: TaxTaker Inc., 1112 E 7th St. Austin, Texas 78701. This contact information provided may be updated by giving notice in accordance with this Section 10.8.

10.9 Waivers. No waiver of any provision of this Agreement is binding unless it is in writing and signed by all Parties to this Agreement, except that any provision that does not give rights or benefits to particular Parties may be waived in writing, signed only by those Parties who have rights under, or hold the benefit of, the provision being waived if those Parties promptly send a copy of the executed waiver to all other Parties. No failure to exercise, and no delay in exercising, any right or remedy under this Agreement will be deemed to be a waiver of that right or remedy. No waiver of any breach of any provision of this Agreement will be deemed to be a waiver of any subsequent breach of that provision or of any similar provision.

10.10 Governing Law, Jurisdiction and Venue. This Agreement and each of the documents contemplated by or delivered under or in connection with this Agreement are governed exclusively by, and will be enforced, construed, and interpreted exclusively in accordance with, the laws applicable in the State of Texas.  Each of the parties irrevocably consents to the exclusive personal jurisdiction of the federal and state courts located in Travis County, Texas, as applicable, for any matter arising out of or relating to this Agreement, except that in actions seeking to enforce any order or any judgment of such federal or state courts located in Travis County, Texas, such personal jurisdiction shall be nonexclusive.

10.11 Binding Arbitration. It is the intention of the Parties to use their reasonable best efforts to informally resolve, where possible, any dispute, claim, demand or controversy arising out of the performance of this Agreement by mutual negotiation and cooperation, a period of which shall be no less than five (5) business days from first notice of any such dispute.  In the event the Parties are unable to informally resolve any such dispute, including relating to this Agreement, the Parties agree to arbitrate any controversy, claim or dispute between them arising out of or in any way related to this Agreement and any disputes upon termination of the relationship, including claims for violation of any local, state or federal law, statute, regulation or ordinance or common law.  The arbitration will be conducted in Travis County, Texas, by a single neutral arbitrator and in accordance with the American Arbitration Association’s (“AAA”) then current Employment Arbitration Rules’ expedited procedures for resolution.  Notwithstanding the provision in the preceding or subsequent paragraph with respect to applicable substantive law, the arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16).  The arbitrator shall have the power to enter any award that could be entered by a judge of the trial court of the State of Texas, and only such power, and shall follow the law.  In the event the arbitrator does not follow the law, the arbitrator will have exceeded the scope of his or her authority and the parties may, at their option, file a motion to vacate the award in court.  The parties agree to abide by and perform any award rendered by the arbitrator.  Judgment on the award may be entered in any court having jurisdiction thereof.  The prevailing party shall be entitled to costs and attorneys’ fees.

10.12 Entire Agreement. The terms of this Agreement, together with any and all Exhibits and other terms incorporated by reference, including, without limitation, TaxTaker’s Privacy Policy, constitute the entire agreement between the Parties with respect to the subject matter thereof and supersede any prior or inconsistent agreements, negotiations, representations, and promises, written or oral, with respect to the subject matter and is binding upon the Parties and their permitted successors and assigns. In the event of any conflict between this Agreement and the terms of an Software License Schedule, the provisions of the Software License Schedule shall prevail. The terms of this Agreement will apply to all orders submitted to TaxTaker and shall supersede any additional terms that may be incorporated in a Software License Schedule form or any other Customer-generated form. Any such Customer terms shall be null and void.

11. Signatures. 

This SaaS Agreement may be executed in multiple counterparts, each of which when executed will be an original, and all of which, when taken together, will constitute one agreement. Delivery of an executed counterpart of a signature page of this SaaS Agreement by electronic transmission (including via pdf) will be effective as delivery of a manually executed counterpart.

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TaxTaker Software as a  Service Agreement

Annex 1: Audit Protection Plan

TaxTaker, Inc. (“our”, “us”, “we”) provides You (“the Company”) this Audit Protection Plan for Research and Development (“R&D”) tax credits in return for the applicable fee and compliance with all terms of this Audit Protection Plan.  By agreeing to this Audit Protection Plan, you are also agreeing to  and bound by TaxTaker’s End User License Agreement (“EULA”) and Privacy Policy. 

1. DEFINITIONS 

In this Audit Protection Plan:

Audit: Any communication, including telephone calls, initiated by the Internal Revenue Service (“IRS”) that indicates the need to audit, examine, review, investigate or verify any item or items pertaining to the defense of the R&D tax credit placed on tax Form 6765 of your Federal return. This protection plan does not extend to any other portion, form, attachment, or statement of your tax return or the Company’s tax return. TaxTaker will represent you through the completion of any Audit involving the R&D tax credit placed on Form 6765 for the tax return year identified in the Agreement between TaxTaker and the Company. Notification of the Audit must be received by TaxTaker within fifteen (15) calendar days of any issuance or official correspondence from the IRS. This Audit Protection Plan is also subject to the limitations and exclusions listed in the original contract and this agreement.

Acceptance Date: The date that TaxTaker receives your payment for the Audit Protection Plan in full. The Company’s Acceptance Date appears on the Agreement between the parties.

Statute of Limitations: The time the IRS has to Audit your tax return. The Statute of Limitations for the IRS is typically three years from the date of filing or the date on which tax is due, whichever is later.

Period of Membership: The period commencing with the Acceptance Date and ending with the expiration of the typical Statute of Limitations period for the applicable tax return.

Audit Representative(s): Audit Representative(s) means your TaxTaker Audit Representative(s) or a third-party who will be assigned to your Audit Protection Plan. These individuals will ordinarily be assigned to you according to their area of expertise.

2. FEES

TaxTaker’s Audit Protection Plan is available for purchase by the Company for a flat-fee of $2,500 USD per year. 

The Audit Protection Plan must be purchased within fifteen (15) days after receiving First Notice of an audit.  There is no requirement that you purchase the Audit Protection Plan upfront.

3. RESPONSIBILITIES

Our Responsibility: We are responsible for providing you with this Audit Protection Plan. 

Your Responsibility: Upon receipt of any communication from the IRS, you are responsible to perform or provide the following:

Promptly call TaxTaker! Do not contact the IRS or State taxing authority that issued the notice. To ensure effective service regarding your Audit, you must use your assigned TaxTaker Audit Representative(s) as your only contact with the IRS. If you do not contact TaxTaker within fifteen (15) calendar days of the date of the first notice, additional charges may apply. If you wait too long, you will forfeit your rights under the Audit Protection Plan and eliminate our ability to defend your case.

Provide your signature(s) on the required IRS or State Power of Attorney and return to the Audit Representative(s) in a timely manner. This will enable your Audit Representative(s) to communicate with the IRS or State on your behalf. This document may not be altered in any way.

Provide in a timely manner the information and documentation necessary to substantiate the various items of income and expense in question so that your Audit Representative(s) can prepare your defense.

Comply fully with the Audit procedure and strategy actions recommended by TaxTaker and any of the Audit Representative(s) working on your behalf. If you are unable to maintain this commitment, TaxTaker will not be responsible for the outcome of your Audit and reserves the right to cease providing services under this Audit Protection Plan where reasonably warranted.

4. AUDIT PROTECTION PLAN BENEFITS

TaxTaker will professionally defend a covered Federal R&D tax credit Audit or notice from the time of the first notice through the examination phase prior to appeals (limited to substantiating benefits), subject to the Audit Protection Plan Limitations and Exclusions described below. This includes any R&D Tax Credit Audit that arises during the Period of Membership as indicated on the Agreement between the parties. All scheduling of appointments, telephone calls and correspondence will be handled by the assigned Audit Representative. We will meet or correspond with the IRS and the auditor on your behalf and will defend you through the negotiation process, subject to the terms herein. 

The Audit Protection Plan also includes:

Handling all communications, including letters and/or telephone calls with the IRS or State regarding the audit.

Assigning the Audit Representative(s) to manage your case.

Developing a strategy with you and then meeting or corresponding with the IRS on your behalf.

Negotiating with the IRS through appeals and pre-litigation appeals review prior to trial in tax court.

No settlement will be reached with the IRS without the Company’s final approval and consent.

5. AUDIT PROTECTION PLAN LIMITATIONS

TaxTaker is dedicated to legitimately protecting the rights and assets of our members in the event of an Audit. The following defines our service limitations:

TaxTaker does not provide legal assistance, nor represent our members in federal or state court, including tax court.

TaxTaker does not provide legal assistance in defending issues of civil or criminal fraud, whether actual or alleged.

In order for your Audit to be covered by TaxTaker, you must provide your receipt as proof of your purchase of the Audit Protection Plan. 

TaxTaker does not prepare or amend our members’ Federal, State or Local income tax returns.

TaxTaker will not reconcile checkbooks, organize records or do record keeping or bookkeeping for our members.

TaxTaker does not provide assistance for collection notices when we did not defend the Audit. If you have a collection notice from the IRS or State it is not considered an Audit and is not covered by your TaxTaker Audit Protection Plan.

TaxTaker is not responsible for the extra work and costs involved if you report your Audit late or you do not cooperate by providing the documentation in a timely manner to your Audit Representative which results in the auditing agency issuing a Notice of Deficiency (NOD) or the state equivalent. If this occurs, TaxTaker will pass these costs onto the member in the form of a late fee.

Coverage is ONLY applicable to the tax year of purchase and does not extend to any other tax year or previously filed returns. 

TaxTaker does NOT guarantee favorable actions taken or decisions made by the taxing authority. 

TaxTaker does NOT provide legal representation or advice as part of its audit support function. However, we may recommend attorneys if necessary. 

TaxTaker does not cover returns NOT accepted by the IRS.

6. AUDIT PROTECTION PLAN EXCLUSIONS

Certain Audits, tax returns, and issues of audit may be excluded from the Audit Protection Plan for any of the following reasons:

Pre-existing conditions – If the date on the notice of Audit from the IRS or State is prior to the Acceptance Date of this Agreement, Audit Protection Plan services for that Audit are excluded.

Unfiled Tax Returns – Your Audit Protection Plan is limited to providing Audit Protection Plan services for tax returns that have been prepared and filed. If a tax return has not been prepared and filed, TaxTaker will commence services on the Audit after the tax return has been prepared and filed.

Tax protestors – TaxTaker will exclude anyone protesting the taxing of income on economic, religious, legal or constitutional grounds, or other frivolous claims.

Criminal Investigation (“CI”) – If you are currently under investigation by CI, you are excluded from Audit Protection Plan services. For any audit that TaxTaker is defending in which CI enters the Audit, TaxTaker will cease working that Audit and will exclude the member from further Audit Protection Plan services until completion of the CI investigation. When the CI investigation is completed, TaxTaker will resume working on the Audit, if possible.

Other taxes – Your Audit Protection Plan is strictly limited to the R&D tax credit claim captured on Form 6765. Any other Audit by the IRS is not covered in this agreement. 

TaxTaker is only obligated to the above provisions to the extent that the R&D tax credits claimed on any tax return (federal or state) match the figures provided to the Company or CPA by TaxTaker

If TaxTaker discovers that you falsely listed information on your tax return and you have purchased the Audit Protection Plan then this will void the Audit Protection Plan and it becomes non-refundable and you will be responsible for the full cost of an audit.

TaxTaker does not guarantee that all audits will be resolved completely or result in a refund or elimination of any balance due with the taxing authorities. 

7. THIRD-PARTY AUDIT REPRESENTATIVES 

By entering this Audit Protection Plan, you agree and understand that TaxTaker reserves the right to either serve as your Audit Representative or enlist a third-party to do so.  In the event that TaxTaker does enlist a third-party Audit Representative, you agree to work with that third-party to effectuate the services under this Audit Protection Plan. 

8. TERMINATION OF AUDIT PROTECTION PLAN

TaxTaker reserves the right to terminate this Audit Protection Plan upon the breach of any material provision of this contract by you, in the event that your Audit meets the criteria of any of the “AUDIT PROTECTION PLAN EXCLUSIONS” listed above, or in the event that a condition renders the completion of TaxTaker’s responsibilities under this agreement unreasonably difficult to fulfill. Conditions that can render completion of TaxTaker’s responsibilities unreasonably difficult include, but are not limited to, failure by you to reasonably fulfill any provision listed as “Your Responsibility” under “RESPONSIBILITIES” above, failure to cooperate during the course of the Audit process, or repeated use of abusive, inappropriate, or unprofessional language when communicating with any staff members or representatives of TaxTaker. 

This Audit Protection Plan shall also be deemed to be terminated if the appropriate fee was not paid to TaxTaker, or was subsequently refunded to you by TaxTaker.