Master Subscription Agreement

GAGNONtax Master Subscription Agreement

Last Modified: August 22, 2019

This Master Subscription Agreement (the “Agreement”) is a contract between you (the “Customer”) and us (GAGNONware, LLC, or “GAGNONtax”). It describes the services we will provide to you, how we will work together, and other aspects of our business relationship. We cannot provide these services unless you agree to the terms of this Agreement. By using the Subscription Services, or receiving the Professional Services, you are agreeing to these terms.

We periodically update these terms and we will let you know if this happens via a notice that appears when you log in to the URL (a/k/a Uniform Resource Locator) address provided to you to access the Subscription Services. Archived versions of this Agreement are available to active Customers upon request.

This Agreement is made and entered into as of the Effective Date of the first Service Order Form (“SOF”) executed between GAGNONtax and the Customer, described in such SOF.

1. Definitions.

As used in this Agreement and in any SOF associated herewith:

(a) “Administrator” means a User designated by Customer who is authorized to submit, whether electronically or in writing, SOFs and otherwise administer Customer’s use of the Subscription Services;

(b) “Affiliate” means a legal entity that controls, is controlled by, or is under common control with the Customer;

(c) “Content” means the visual information, documents, and services contained in or made available via the Subscription Services, other than Customer Data;

(d) “Customer” means the legal entity for which the Subscription Services are provided, as identified in the applicable SOF;

(e) “Customer Data” means any data, information or material that Customer or Customer’s Users, may disclose or submit to GAGNONtax in the course of using the Subscription Services;

(f) “Deliverables” means any copyrightable works, products, discoveries, developments, designs, work product, deliverables, improvements, inventions, processes, techniques and know-how made, conceived, reduced to practice or learned by GAGNONtax (either alone or jointly with Customer or others) that result from Subscription Services included in any SOF, and provided to Customer hereunder;

(g) “Enterprise Subscription” means a subscription for Subscription Services so designated on an SOF.

(h) “Entity” means a single legal entity comprising the Customer or an Affiliate;

(i) “GAGNONtax Technology” means all of GAGNONtax’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 GAGNONtax in providing the Subscription Services;

(j) “Implementation Services” means services provided one time by GAGNONtax, as specified on the initial SOF, including but not limited to Customer database provisioning, User set up and credentialing and initial User training, and not including Subscription Services or Professional Services;

(k) “Initial Service Term” means the contracted period specified in the initial SOF;

(l) “Intellectual Property Rights” means 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;

(m) “Order Effective Date” means the date identified in an SOF as the date on which such SOF shall be effective;

(n) “Service Order Form” or “SOF” means the form evidencing the initial subscription order for the Subscription Services and any subsequent SOF submitted online or in written form, specifying, among other things, the Order Effective Date, Entity Tier, and/or other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such fully executed SOF to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such SOF, the terms of the SOF shall prevail);

(o) “Professional Services” means any services other than Subscription Services or Implementation Services provided by GAGNONtax or its subcontractors or agents pursuant to an applicable SOF, including but not limited to tax technical support and other consulting services;

(p) “Renewal Service Term” means each subsequent renewal period that becomes effective following commencement of the Initial Service Term;

(q) “Subscription Services” means GAGNONtax’s online services identified during the ordering process, developed, operated, and maintained by GAGNONtax, or ancillary online or offline products and services provided to Customer by GAGNONtax, to which Customer is being granted access under this Agreement, including the GAGNONtax Technology, the Content and any products or services so identified on an SOF; and

(r) “User” means any Customer employee, representative, consultant, contractor or agent who is authorized to use the Subscription Services who has been supplied user credentials by Customer (or by GAGNONtax at Customer’s request).

2. Subscription Services.

Subject to the terms and conditions of this Agreement, during the Initial Service Term and any subsequent Renewal Service Term, GAGNONtax will provide Customer with access to and use of the Subscription Services provided hereunder solely for Customer’s own business purposes, including for any Affiliate which, together with Customer, do not in aggregate exceed the maximum number permitted under the Entity Tier specified in the applicable SOF. Customer is not granted a license to any software application by this Agreement. Except as otherwise provided in an applicable SOF, all rights not expressly granted to Customer are reserved by GAGNONtax. GAGNONtax reserves the right to make changes, modifications and enhancements to the Subscription Services from time to time.

3. Limitations on Use.

Customer may not release to any third party the results of any evaluation of the Subscription Services performed by or on behalf of Customer for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes without the prior written approval of GAGNONtax. Customer shall not:

(a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Subscription Services or the Content in any way;

(b) modify or make derivative works based upon the Subscription Services or the Content;

(c) reverse engineer the Subscription Services;

(d) access the Subscription Services in order to build a competitive product or service;

(e) use the Subscription Services to interfere with or disrupt the integrity or performance of the Subscription Services or the data contained therein; or

(f) attempt to gain unauthorized access to the Subscription Services or its related systems or networks.

4. Order Process.

Customer shall order the Subscription Services by signing a completed SOF. GAGNONtax shall accept or reject such SOF within ten (10) days, after which such SOF will be deemed accepted. Each accepted, fully executed SOF shall be deemed to become incorporated herein by reference as if attached and made an integral part of this Agreement. Terms, provisions or conditions on any purchase order, acknowledgement, or other business form or writing that Customer may provide to GAGNONtax or use in connection with the procurement of Subscription Services (or any software) from GAGNONtax will have no effect on the rights, duties or obligations of the parties hereunder, regardless of any failure of GAGNONtax to object to such terms, provisions or conditions.

5. Customer’s Responsibilities.

Customer is responsible for all activity occurring under Customer’s User accounts and shall comply with all applicable laws and regulations in connection with Customer’s use of the Subscription Services. Customer shall:

(a) notify GAGNONtax immediately of any unauthorized use of any password or account or any other known or suspected breach of security with respect to the Subscription Services;

(b) report to GAGNONtax immediately and use reasonable efforts to stop immediately any copying or distribution or misuse of Content, GAGNONtax Technology, Subscription Services or Deliverable that becomes known or suspected by Customer or Customer’s Users; and

(c) not impersonate another GAGNONtax user or provide false identity information to gain access to or use the Subscription Services. Customer shall indemnify and hold GAGNONtax, 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) to the extent arising out of or in connection with a claim alleging that use of the Customer Data infringes a copyright, patent, or trademark of, or has caused harm to the rights of, a third party provided in any such case that GAGNONtax:

(i) promptly gives notice of the claim to Customer;

(ii) gives Customer sole control of the defense and settlement of the claim (provided that Customer may not settle such claim unless such settlement unconditionally releases GAGNONtax of all liability and does not adversely affect GAGNONtax’s business or Service);

(iii) provides to Customer all available information and reasonable assistance; and

(iv) has not compromised or settled such third-party claim.

6. Account Information and Data.

GAGNONtax does not own any Customer Data. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, and intellectual property ownership or right to use all Customer Data, and GAGNONtax shall not be responsible or liable for the deletion, correction, destruction, damage, or loss of Customer Data not caused by GAGNONtax. GAGNONtax’s use of Customer Data shall be limited to the purpose of providing the Subscription Services to the Customer and for GAGNONtax to meet its obligations hereunder. As part of the Subscription Services, GAGNONtax shall make available to Customer the ability to export a file containing the Customer Data. Customer agrees and acknowledges that:

(a) GAGNONtax is not obligated to retain any Customer Data for longer than 30 days after termination; and

(b) GAGNONtax has no obligation to retain Customer Data, and may delete Customer Data, if Customer has materially breached this Agreement, including but not limited to failure to pay outstanding fees. Upon termination for cause resulting from an uncured breach, Customer’s right to access or use Customer Data immediately ceases, and GAGNONtax shall have no obligation to maintain or forward any Customer Data. GAGNONtax shall maintain data backup procedures (collectively, “Data Backup Procedures”) which shall include procedures regarding frequency of data backup, recovery of materials, storage of backup media, plans for restoration of data and programs, turnover of backup materials in the event of termination of the Agreement or upon Client’s request, and data integrity safeguards. GAGNONtax shall perform all backups in accordance with the Data Backup Procedures. GAGNONtax shall implement and maintain reasonable security procedures and practices appropriate to the nature of the information, to protect any Client Data obtained hereunder from unauthorized access, destruction, use, modification or disclosure.

7. Professional Services.

(a) If Professional Services are to be provided by GAGNONtax, additional terms and conditions applicable thereto, and the scope thereof, shall be determined as set forth in the subject SOF. In addition, the following provisions shall apply. GAGNONtax shall retain all ownership rights to any and all Deliverables provided excluding any pre-existing technology or materials supplied by Customer for incorporation into such Deliverables. GAGNONtax grants Customer a royalty-free, non-exclusive, non-transferable, non-assignable worldwide license to use any Deliverables, to the extent necessary to permit Customer to use the Deliverables in connection with the Subscription Services during the Term. Customer acknowledges that nothing in this Agreement shall restrict or limit GAGNONtax from performing similar Professional Services for any third party.

(b) If Subscription Services or Professional Services include input by GAGNONtax of data provided by Customer (“Tax Data”) into applications or systems provided by GAGNONtax and necessary for performance of the Subscription Services, Customer is solely responsible for reviewing and validating that the Tax Data as input accurately reflects the Tax Data provided. For purposes of quality control, GAGNONtax may require acknowledgement from the Customer that Tax Data has been reviewed and approved. In the event such acknowledgement is not received within ten (10) days, approval by Customer shall be deemed to have occurred.

8. Intellectual Property Ownership.

GAGNONtax alone shall own all right, title and interest, including all related Intellectual Property Rights, in and to the GAGNONtax Technology, the Content, the Subscription Services and any Deliverables, including to any and all enhancements, enhancement requests, suggestions, modifications, extensions and/or derivative works thereof, even if Customer pays Professional Services Fees for such. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Subscription Services, to any Deliverable, the GAGNONtax Technology or the Intellectual Property Rights owned by GAGNONtax. The GAGNONtax name, the GAGNONtax logo, and the product names associated with the Subscription Services are service marks or trademarks of GAGNONtax, and no right or license is granted to use them.

9. Fees, Payment Terms, Taxes, Billing Contact.

Customer shall pay all fees or charges as specified on each executed SOF (“Fees”). All payment obligations are non-cancelable while this Agreement remains in effect, and all amounts paid are nonrefundable. GAGNONtax generally charges and collects in advance for Subscription Fees and in arrears for usage which exceeds such Subscription Fees defined on each SOF. Payment terms not specified in the subject SOF are net thirty (30) days from the date of GAGNONtax’s invoice, without offsets or deductions of any kind. GAGNONtax’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 GAGNONtax’s income. If GAGNONtax has the legal obligation to pay or collect taxes for which Customer is responsible, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides GAGNONtax with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer agrees to provide GAGNONtax with accurate billing and contact information, including Customer’s legal company name, street address, and the name, e-mail address, and telephone number of an Administrator. Customer agrees to update this information within thirty (30) days of any change thereto. GAGNONtax reserves the right to modify its Fees with respect to its Subscription Services and to introduce new charges to become effective upon the upcoming Renewal Service Term by providing Customer written notice at least ninety (90) days prior to the end of the then current Service Term. In the event that Customer does not provide notice of termination to GAGNONtax as described below, such Fee changes shall become effective at the commencement of the next Renewal Service Term. In the event Customer fails to make payments per payment terms as set forth in this Agreement or in any applicable SOF, and legal enforcement by GAGNONtax is deemed necessary, Customer agrees to pay all reasonable legal fees and costs incurred by GAGNONtax.

10. Agreement Term, SOF Term.

The Term of this Agreement shall begin on the Effective Date of the first SOF executed by Customer and shall continue in effect until all SOFs issued under this Agreement have expired in accordance with the terms thereof (unless this Agreement is terminated earlier as provided herein). The term of an SOF will begin on the Effective Date of the SOF and shall continue for the term specified in such SOF subject to Subparagraph (c) of this Paragraph. In the event that an SOF contains Subscription Services or Professional Services added to an existing subscription, such added Subscription Services shall be billed as provided for in the subject SOF and will terminate with the SOF unless:

(a) otherwise set forth in an applicable SOF; or

(b) this Agreement is terminated earlier as provided herein.

(c) Upon expiration of an SOF, the Subscription Services will renew automatically for each subsequent twelve (12) month period following the end of the Initial Service Term (each a “Renewal Service Term”) as if the parties entered into a new SOF, unless either party notifies the other party of its intent to terminate at least ninety (90) days prior to the end of the then effective Initial Service Term or Renewal Service Term. Subscription Fees and Professional Fees for each Renewal Service Term shall increase to the then-standard GAGNONtax Subscription Services Fees for the subject services (or, by 5% for an Enterprise Subscription) for each subsequent Renewal Service Term.

11. Non-Payment and Suspension.

In addition to any other rights granted to GAGNONtax herein, GAGNONtax reserves the right to suspend or terminate this Agreement, any related SOFs, and Customer’s access to the Subscription Services if Customer’s account becomes delinquent and is uncured for a period of thirty (30) days. Delinquent invoices are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, from the date due, plus all expenses of collection. In addition, GAGNONtax has the right to remove any credit terms provided in any SOF in the event Customer’s account becomes delinquent (e.g. net 30 payment terms will be reduced to net 0). Customer will continue to be charged for Fees during any period of Service suspension due to Customer’s delinquency. If GAGNONtax initiates termination of this Agreement for cause, described herein, Customer will be obligated to pay all remaining Fees due computed in accordance with their terms for the remainder of the applicable Order Initial Service Term, or Renewal Service Term thereof.

12. Termination for Cause.

Either party may terminate this Agreement (and any SOFs then in effect) if the other party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after delivery of notice of such breach.

13. Representations and Warranties.

Each party represents and warrants that it has the legal power and authority to enter into this Agreement. In the event of a breach of this warranty, Customer’s sole remedy and GAGNONtax’s sole obligation will be for GAGNONtax to make reasonable commercial efforts to correct the non-conformity or, if GAGNONtax is unable to correct the non-conformity within ninety (90) days after Customer’s written notice, for Customer to terminate the applicable SOF and receive a refund on a pro-rata basis of any prepaid unused Fees under such SOF.

14. DISCLAIMER OF WARRANTIES.

EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THE PRECEDING PARAGRAPH, GAGNONTAX MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. GAGNONTAX EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. GAGNONTAX DOES NOT WARRANT THAT THE SERVICES (INCLUDING PROFESSIONAL SERVICES OR RELATED DELIVERABLES, IF ANY) ARE OR WILL BE ERROR-FREE, WILL MEET CUSTOMER’S REQUIREMENTS, OR BE TIMELY OR SECURE. CUSTOMER WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF GAGNONTAX TO ANY THIRD PARTY.

15. INTERNET DELAYS.

GAGNONTAX’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. GAGNONTAX IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS NOT CAUSED BY GAGNONTAX.

16. LIMITATION OF LIABILITY.

IN NO EVENT SHALL GAGNONTAX’S AND ITS LICENSORS’ AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT EXCEED THE LESSER OF THE AMOUNTS ACTUALLY PAID BY OR DUE FROM CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, 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.

17. Marketing.

Customer grants GAGNONtax the right to use Customer’s name and logo on GAGNONtax’s website simply to identify Customer as a GAGNONtax customer without revealing any specifics about the parties’ relationship or this Agreement. Customer further agrees that the GAGNONtax name, logo and/or web address may appear in reports and similar outputs generated through Customer’s use of the Service and agrees not to remove or otherwise obfuscate such identifying information.

18. Notice.

All legal notices (i.e. claimed breach or termination of Agreement or SOFs) required to be provided under this Agreement must be delivered in writing:

(a) in person;

(b) by nationally recognized overnight delivery service; or

(c) by certified U.S. mail to the other party at the address set forth in the applicable SOF or as otherwise communicated to the other party in writing. GAGNONtax may give notice by emailing Customer’s billing contact as specified on the SOF. All notices shall be deemed to have been given upon receipt or, if earlier, two (2) business days after being deposited in the mail as required above. Either party may change its address by giving timely notice of the new address to the other party pursuant to this Section and identifying in such notice the date on which such change is effective.

19. Assignment.

Customer may not assign this Agreement to any third party except upon GAGNONtax’s prior written consent, which consent not to be unreasonably withheld. Any purported assignment in violation of this Section shall be void. This Agreement and each and all of the provisions hereof bind and benefit the parties and their respective heirs, executors, administrators, legal representatives, successors and assigns.

20. Confidentiality.

GAGNONtax will:

(a) protect the confidentiality of Customer Data using the same degree of care that it uses with its own confidential information of similar nature, but with no less than reasonable care;

(b) not use any Customer Data for any purpose outside the scope of this Agreement; and

(c) not disclose Customer Data to any third party except to its third party service providers, agents or subcontractors employed to provide the Subscription Services or Professional Services, in which case GAGNONtax shall ensure that such third parties protect the confidentiality of Customer Data to no less than the degree required by GAGNONtax.

Customer will not disclose any pricing terms or other terms of this Agreement that vary from terms published publicly by GAGNONtax to anyone other than its attorneys, accountants, and other professional advisors under a duty of confidentiality except as required by law.

21. Choice of Law and Arbitration.

This Agreement is governed by the laws of the Commonwealth of Massachusetts. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, including the Optional Rules for Emergency Measures of Protection, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.

22. General.

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. No joint venture, partnership, employment, or agency relationship exists between Customer and GAGNONtax as a result of this Agreement or use of the Subscription Services. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. The terms and conditions of this Agreement shall govern the Subscription Services to be provided by GAGNONtax under any SOF submitted by Customer and accepted by GAGNONtax, as though the provisions of this Agreement were set forth in their entirety within such SOF, and so that each SOF and this Agreement shall be considered one, fully integrated document and agreement. This Agreement, together with any applicable SOF(s) (including any other documents referenced therein), comprises the entire agreement between Customer and GAGNONtax regarding the subject matter contained herein and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding such subject matter.