AMADADA SOFTWARE INC Standard Software License Agreement

Thank you for selecting SREDable, the SR&ED Online Claim Preparation Software marketed by RSG Revenue Services Group Inc

This SREDable Standard Software License Agreement (this “Agreement”) is made by and between Amadada Software Inc and “Customer” (as defined below), and governs Customer’s use of any AMADADA SOFTWARE INC software.

By using the Software or by otherwise indicating acceptance (electronically by clicking “I accept” or otherwise) of this Agreement, Customer acknowledges its agreement to the terms set forth below.

1. DEFINITIONS. In addition to the terms defined elsewhere in this Agreement, the following are defined terms in this Agreement:

1.1. “Authorized User” refers solely to an individual for whom Customer has obtained a valid User License. An Authorized User must be a full-time or part-time employee (but may be a contract/temporary employee) working for Customer primarily at the Designated Office(s) for the purpose of assisting Customer in its day-to-day business activities (subject to the other terms and conditions of this Agreement, including, without limitation, subsection 2.3). An Authorized User does not acquire individual rights in the Software other than the right to use such Software on Customer’s behalf and pursuant to the rights granted to Customer and subject to the terms and conditions herein.

1.2. “Customer” means the person or entity that is the registered end user of the Software, as specified on the Order Confirmation.

1.3. “Deliverables” means all services and materials, and the related benefits, available from time-to-time from, and as determined in the discretion of, AMADADA SOFTWARE INC or its authorized affiliates for use in connection with the Software (including, but not limited to: product support, Updates, electronic filing, and access to the Online Account(s) of Web-based Applications).

1.4. “Designated Office(s)” means the site(s), location(s), and/or address(es) for which Customer licenses the Software as identified on the Order Confirmation.

1.5. No clause

1.6. “Fees” means the fees payable by Customer to AMADADA SOFTWARE INC under the Order Confirmation and this Agreement for use of the Software and Deliverables.

1.7. “License” means the license granted to Customer to use the Software as granted by the Order Confirmation and subsection 2.1 of this Agreement.

1.8. “Online Account” means the authorized access into a Web-based Application as established by AMADADA SOFTWARE INC through sredable.com or sredtime.com for use by any particular Authorized User, and includes the controls, permissions and data unique to such user.

1.9. “Online Account Access Information” means the private access information (for example, username and password) used by each Authorized User of a Web-based Application to access his/her individual Online Account.

1.10. “Order Confirmation” means a purchase order written and approved by AMADADA SOFTWARE INC, or its authorized affiliates, for Customer’s acquisition of a License to the Software. The Order Confirmation may contain additional terms that govern Customer’s relationship with AMADADA SOFTWARE INC and Customer’s use of the Software.

1.11. “Software” means the particular software title(s) and version(s) (including all accompanying code, files, databases, documentation, materials, modifications, revisions, optional features, enhancements, and Updates, if any) that are identified in the Order Confirmation written and approved by AMADADA SOFTWARE INC for Customer.

1.12. “Updates” mean all minor revisions, patches, fixes, and other improvements (version upgrades excluded) provided by AMADADA SOFTWARE INC,in its sole discretion, for a particular version of the Software.

1.13. “User License” means the right granted by AMADADA SOFTWARE INC to a particular individual to use the Software, pursuant to the terms of this Agreement.

1.14. “Web-based Application” means software that is hosted on third party servers and available for use by Customer via the Internet. Certain terms and conditions within this Agreement (including, but not limited to, Section 6) may only apply to the use of Web-based Application versions of the Software, if so stated herein.

2. LICENSE, RESTRICTIONS & OWNERSHIP

2.1. License.

2.1.1. Grant of License. Subject to the terms and conditions of this Agreement, AMADADA SOFTWARE INC grants to Customer a limited, nontransferable, nonexclusive right and license to use, and to permit Authorized Users to use, the Software solely for the purpose of performing services for itself or its clients without any further right to use, sublicense, distribute, transfer or transmit the Software. Customer must ensure that it holds a valid User License for each individual Authorized User who will be using the Software. Information about the number of licensed end users permitted to use a single copy of the Software can be found on the Order Confirmation for the Software.

2.1.2. No Clause

2.1.3. Web-based Applications. A Web-based Application may be accessed at any location by an Authorized User through use of such Authorized User’s Online Account Access Information.

2.1.4. Condition of License. The License granted to Customer under this Agreement is conditioned upon Customer’s compliance with the terms of this Agreement and the Order Confirmation, including, but not limited to, the timely payment of all applicable Fees.

2.2. No Clause.

2.3. Restrictions. Without a separate written agreement with AMADADA SOFTWARE INC to the contrary, Customer must not do, or permit others to do, any of the following: (a) copy or modify the Software in any way, except as permitted in subsection 2.2; (b) remove or modify AMADADA SOFTWARE INC’ copyright notices, trademark, logo, legend or other notice of ownership from any originals or copies of the Software; (c) attempt to view, read, modify, reverse compile, reverse assemble, disassemble or print the Software’s source code or object code or other runtime objects or files distributed with the Software; (d) otherwise reverse engineer, modify or copy the look and feel, functionality or user interface of any portion of the Software; (e) rent, lease, distribute (or redistribute), provide or otherwise make available the Software, in any form, to any third party (including in any service bureau or similar environment); (f) share the use or the access of the Software with other practitioners (including outsourcers performing work for Customer) who are not in Customer’s practice, even if Customer shares office space or equipment; (g) share Online Account or Online Account Access Information with third parties; (h) use the Software to process the data of clients of a third party (whether on an outsourcing, service bureau, or other basis); (i) install a copy of the Desktop Application version of the Software at an office location not registered and/or licensed as a Designated Office with AMADADA SOFTWARE INC; (j) publish, distribute (or redistribute) or sell any document retrieved through the Software (even if in the public domain) to any individual or entity outside of Customer’s own firm, except for documents prepared for Customer’s clientele within the scope of the normal and intended use of the Software; (k) employ remote programs, remote desktops, Virtual Private Networks (VPN), Virtual Network Computing (VNC) or any other remote means to access the Software outside of the Designated Office; (l) use, install, or make available the Desktop Application versions of the Software, in whole or in part, through a wide area network including but not limited to World Wide Web sites, intranets, or Application Service Providers (ASP); or (m) use or attempt to use the Software in conjunction with offering tax refund related bank products of any financial institution not authorized by AMADADA SOFTWARE INC. In addition, Customer will not violate or attempt to violate the security of AMADADA SOFTWARE INC’ networks or servers, including (x) access data not intended for Customer or log into a server or account which Customer is not authorized to access; (y) attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper written request and authorization; or (z) attempt to interfere with service to any user, host or network, including by means of submitting a virus, overloading, flooding, spamming, mail bombing or crashing.

2.4. Unauthorized Acquisition. This Agreement expressly prohibits Customer from using the Software or Deliverables or any other software from AMADADA SOFTWARE INC that has been improperly obtained and/or accessed. For purposes of illustration, but not limitation, examples include Software, Deliverables or other AMADADA SOFTWARE INC software that: (a) is acquired from an unauthorized reseller or distributor; (b) is pirated, cracked or hacked, including through the use of Online Account Access Information established for use by another individual; (c) has been acquired with the intent or for the purpose to use in a manner that is illegal, fraudulent, in violation of this Agreement or otherwise outside the normal, stated and/or reasonably understood purpose of the Software; or (d) is acquired with the use of false or inaccurate statements and/or information (e.g., false name, contact information, EFIN, or payment information; false declaration of the total number of end users; or false claim of ownership of multiple business locations with the intention of obtaining a multi-office discount).

2.5. Reservation of Rights & Ownership of Developed Materials. AMADADA SOFTWARE INC, and its applicable suppliers, retain all proprietary rights in the Software. AMADADA SOFTWARE INC, and its applicable suppliers, reserve all patent, copyright, trade secret, trade name, trademark, and other proprietary rights related to the Software and Deliverables, which are protected under Canadian intellectual property laws and International Treaty Provisions. Unauthorized use of any of the Software will result in cancellation of this Agreement as well as possible civil damages and criminal penalties. Customer is not permitted to use the trade or service marks of AMADADA SOFTWARE INC or any of its affiliates in Customer’s announcements, advertising or other materials unless expressly agreed to in writing by an authorized representative of AMADADA SOFTWARE INC. Customer acknowledges and agrees that AMADADA SOFTWARE INC’ and its applicable suppliers’ retention of contractual and intellectual property rights is an essential part of this Agreement. AMADADA SOFTWARE INC and its suppliers (as applicable) will own all rights in (i) any copy, translation, modification, adaptation or derivation of the Software, including any improvement or development thereof, whether or not developed by or for the Customer, and (ii) any suggestions, ideas, enhancement requests, feedback, or recommendations provided by Customer.

2.6. No Clause

 

3. FEES AND PAYMENT

3.1. Fees. 

Customer agrees to pay all fees set forth in the SREDable Software Order Form.

Customer will owe the Fees set forth above to RSG Revenue Services Group Inc upon signature of the order form which itself signals acceptance of this agreement. Additional Fees may apply for setup, transactions, use of certain Deliverables or for certain Web-based Applications. Customer agrees to pay such Fees for such Deliverables when due, in accordance with the terms of this Agreement and the applicable Order Confirmation. The Order Confirmation, published product descriptions or other documents that may be provided in connection with the Deliverables will contain information concerning applicable Fees. All Fees are due and payable as laid out in the SREDable Software Order Form. AMADADA SOFTWARE INC may assess a late payment Fee equal to the lesser of one and one-half percent (1•••%) of the unpaid amount or the highest interest rate allowed by applicable law for each succeeding thirty (30) day period or portion thereof in which Fees are not paid in full. No credit will be provided for the time that the software or Deliverables were not utilized.

3.2. Taxes. All Fees are exclusive of any taxes, assessments or duties that may be assessed upon the Software, License or Deliverables granted under this Agreement, including, without limitation, sales, use, excise, value added, personal property, electronic/Internet commerce, export, import, withholding taxes, and third-party fees as disclosed in the Order Confirmation. Customer will directly pay any such taxes assessed against it, and Customer will promptly reimburse AMADADA SOFTWARE INC for any such taxes payable or collectable by AMADADA SOFTWARE INC. Such taxes do not include taxes based upon AMADADA SOFTWARE INC’s income. Taxes are calculated on product plus additional charges, where applicable. Taxes include state and local sales or use taxes and are based upon the Customer’s deliver-to address. Tax exemption certificates, if any, must be submitted at the time of order.

 

4. TERM & TERMINATION

4.1. Term. The License to use the Web-based Application version of the Software will terminate on the same date that the Deliverables provided with such Software expire. Access to the Deliverables, and thus the full benefit of this Agreement, will expire one (1) year from the date of the initial shipment of the Software. Notwithstanding the term set forth above, access to the  Deliverables associated with software that is no longer available through third parties, such as e-filing or bank products, will expire the earlier of one (1) year from the date of the initial shipment of the Software or when they become unavailable. This Agreement will automatically expire and terminate with the expiration of the Deliverables. The following sections will survive the expiration of this Agreement under this subsection 4.1: subsections 5.3, 8.3, 8.4 and 8.5, and Sections 1, 2, 4, 7, 9, 10 and 11.

4.2. Termination of Agreement for Cause.

4.2.1. This Agreement, including both the License and Deliverables provided hereunder, may be terminated by AMADADA SOFTWARE INC for cause, in its sole discretion, immediately upon notice to Customer if Customer materially breaches any terms or conditions of this Agreement, or if any Fees remain unpaid for a period of thirty (30) days after invoicing or otherwise due.

4.2.2. Upon termination under this subsection 4.2, Customer will cease all further use of the Software and Deliverables.

4.2.3. Termination of this Agreement pursuant to this subsection 4.2 will not require payment of a refund to Customer and will not affect: (a) Customer’s obligation to pay any fees due, or (b) any remedies available to AMADADA SOFTWARE INC by law or equity.

4.2.4. The following sections will survive termination of this Agreement under this subsection 4.2: subsections 2.3, 2.5, 2.6, 4.2, 8.3, 8.4 and 8.5, and Sections 1, 9, 10 and 11. The survival provision in subsection 4.1 will not apply to termination of this Agreement under this subsection 4.2.

4.3. Suspension of Access. AMADADA SOFTWARE INC may suspend or terminate (where appropriate), as determined in AMADADA SOFTWARE INC’ discretion, Customer’s use of, or otherwise modify, the Software or the Deliverables at any time in order to: (a) prevent damages to, or degradation of the integrity of, AMADADA SOFTWARE INC’ Internet network; (b) comply with any law, regulation, court order, or other governmental request or order which requires immediate action; or (c) otherwise protect AMADADA SOFTWARE INC from potential legal liability or harm to its business. AMADADA SOFTWARE INC will use commercially reasonable efforts to notify Customer of the reason(s) for such suspension or termination action as soon as reasonably practicable. In the event of a suspension, AMADADA SOFTWARE INC will promptly restore use of the Software to Customer as soon as the event giving rise to the suspension has been resolved as determined in AMADADA SOFTWARE INC’s discretion. Nothing contained in this Agreement will be construed to limit AMADADA SOFTWARE INC’ actions or remedies or act as a waiver of AMADADA SOFTWARE INC’ rights in any way with respect to any of the foregoing activities.

4.4. No Clause

 

5. UPDATES & SUPPORT

5.1. Updates. AMADADA SOFTWARE INC may, from time to time, provide Updates of the Software to Customer. However, supplying Updates will be at AMADADA SOFTWARE INC’ discretion and AMADADA SOFTWARE INC will have no obligation, express or implied, to provide Updates. Customer agrees to install all available Updates to the Software and acknowledges that Customer’s failure to do so is at Customer’s sole risk. AMADADA SOFTWARE INC reserves the right to charge additional license fees for any optional enhancements which incorporate significant new features or functionality to the Software, as determined by AMADADA SOFTWARE INC in its sole discretion.

5.2. Support. AMADADA SOFTWARE INC may also offer, in its sole discretion, email product support for the Software. Support for prior year versions of the Software may be more limited and is only available in AMADADA SOFTWARE INC’ discretion. AMADADA SOFTWARE INC, at its sole discretion, may choose to only support the most recent version of any particular Software. AMADADA SOFTWARE INC may also choose not to support software that is accessed via a web-browser that does not meet AMADADA SOFTWARE INC’ standard published system requirements, as in effect from time to time. Customer agrees that Customer and/or Customer’s agents or employees will not place more than one service call at any given time to AMADADA SOFTWARE INC’s support service(s) regarding the same situation, support question, issue or matter. AMADADA SOFTWARE INC reserves the right to terminate Customer’s access to product support if it determines that Customer is committing acts that are disruptive to the service.

5.3. Data Retention. AMADADA SOFTWARE INC will retain the data that Customer has properly submitted to AMADADA SOFTWARE INC’ online servers for at least one year following the year in which Customer submitted any such data. AMADADA

SOFTWARE INC will then maintain the data in accordance with its internal business practices. It is Customer’s responsibility to backup onto Customer’s own local system all data and records that Customer submits to AMADADA SOFTWARE INC’ network.

5.4. Miscellaneous. Updates and support will only be available to Customer until the expiration of the Deliverables included with the

Software, as specified in subsection 4.1. AMADADA SOFTWARE INC reserves the right to modify its update and support policies, procedures and fees from time to time.

 

6. WEB-BASED APPLICATIONS

6.1. Protection of Account Access Information. For Web-based Application versions of the Software, AMADADA SOFTWARE INC will supply Customer with the means to create private Online Account Access Information for its Authorized Users so that such Authorized Users may log into Customer’s Online Account within the Software. Customer’s Online Account is designed for private use and should only be accessed through Authorized User’s Online Account Access Information. Customer agrees to immediately notify AMADADA SOFTWARE INC of any unauthorized use of Online Account Access Information or any other breach of security. Customer is fully responsible for the protection and confidentiality of its Authorized Users’ Online Account Access Information. Customer acknowledges and agrees that Customer is responsible for all use of the Software as made through Customer’s Online Account by any person and for insuring that all use of Customer’s Online Account is for authorized purposes only and complies fully with the provisions of this Agreement.

6.2. Additional Online Terms. AMADADA SOFTWARE INC may post additional terms, conditions and/or polices (“Online Terms”) at the online location where Customer accesses any particular Web-based Application version of the Software. Customer agrees to abide by any and all such Online Terms. To the extent that there is a conflict between this Agreement and any Online Terms, the terms of this Agreement will govern unless explicitly stated otherwise by AMADADA SOFTWARE INC in such Online Terms.

6.3. Internet Disclaimer. Customer acknowledges that the delivery systems used for Web-based Applications, namely the Internet and the World Wide Web, are known to be unpredictable in their performance and may, from time to time, impede access to the Webbased Application or other Deliverables or performance hereunder. Customer agrees that AMADADA SOFTWARE INC is not in any way responsible for any such interference with Customer’s use of or access to such versions of the Software or the related Deliverables and Customer waives any and all claims against AMADADA SOFTWARE INC in connection therewith.

 

7. CUSTOMER’S PROFESSIONAL RESPONSIBILITY AND WARRANTIES

7.1. Professional Responsibility. Customer understands, agrees and acknowledges that:

7.1.1. Use of the Software does not relieve Customer of responsibility for the preparation, content, accuracy, and review of tax returns prepared by Customer while using the Software or any other work product generated by Customer while using the Software;

7.1.2. Customer will review any computations made by the Software and satisfy itself that those computations are correct;

7.1.3. Customer will not rely upon AMADADA SOFTWARE INC for advice regarding the appropriate treatment of tax, accounting and/or other matters;

7.1.4. Customer will retrieve in a timely manner any electronic communications made available to Customer by AMADADA SOFTWARE INC (for example, electronic filing transaction data such as acknowledgements and e-mail messages in Customer’s mailbox); and

7.1.5. Customer is fully and solely responsible for: (a) selection of adequate and appropriate versions of the Software to satisfy Customer’s business needs and achieve Customer’s intended results; (b) use of the Software; (c) all results obtained from the Software; (d) selecting, obtaining and maintaining all hardware, software, Internet service, and other equipment and utilities needed for access to and use of the Software, and for all costs associated therewith; and (e) selection, use of, and results obtained from any other programs, computer equipment or services used with the Software.

7.2. Customer’s Representations. Customer represents, warrants and covenants that:

7.2.1. Customer has full power and authority to enter into this Agreement and to perform its obligations hereunder, and that this Agreement has been duly authorized, executed and delivered by Customer and constitutes a valid and binding obligation of Customer;

7.2.2. Customer is licensing the Software solely for Customer’s own use and/or to provide tax and accounting services to Customer’s direct clients;

7.2.3. Customer will not use the Software to create a product, service or database that competes with AMADADA SOFTWARE INC, the Software or Deliverables;

7.2.4. Customer will comply with all applicable rules, regulations and procedures of the Canadian government and all applicable state and foreign authorities, including, without limitation, all rules, regulations and procedures of the Canada Revenue Agency.

7.2.5. Customer has all rights necessary to legally transmit any data or information to AMADADA SOFTWARE INC’s outsourced networks or servers, and the possession, storage and use by AMADADA SOFTWARE INC of such data or information will not infringe or misappropriate the intellectual property rights, or other rights, of any third party;

7.2.6. Customer will be solely responsible for compliance with this Agreement by the Authorized Users;

7.2.7. Customer is not prohibited by a third-party agreement from entering into the terms and conditions of this Agreement; and

7.2.8. Customer will not otherwise violate the rights of any third party while using the Software.

7.3. Customer acknowledges and agrees that AMADADA SOFTWARE INC cannot guarantee that taxing authorities will accept all returns due to circumstances that are beyond AMADADA SOFTWARE INC’s reasonable control. Customer agrees to review the electronic filing and acknowledgment report and status after submission to confirm the file was accepted. For amended returns, Customer must submit returns using standard paper methods.

7.4. Indemnification. Customer agrees to indemnify and hold harmless AMADADA SOFTWARE INC, its employees, officers, directors and affiliates against any and all liability (including damages, recoveries, deficiencies, interest, penalties and reasonable attorney’s fees) to third parties (including, but not limited to, the Canadian government and state taxing authorities) relating to: (a) Customer’s breach of any of its obligations, representations and/or warranties under this Agreement; or (b) except for claims for which AMADADA SOFTWARE INC is liable under Section 8 below, Customer’s use of the Software, the Deliverables and/or third party software.

 

8. AMADADA SOFTWARE INC WARRANTIES

8.1. AMADADA SOFTWARE INC’ General Warranties. AMADADA SOFTWARE INC represents and warrants that it has title to the Software and the right to grant Customer the rights granted hereunder. AMADADA SOFTWARE INC further represents and warrants that the Software does not violate any third party’s Canadian intellectual property rights. Customer’s sole and exclusive recourse and remedy for a breach of this warranty by AMADADA SOFTWARE INC will be the exercise of its indemnity rights under subsection 8.2 below.

8.2. Indemnification by AMADADA SOFTWARE INC.

8.2.1. Subject to the other terms and conditions set forth herein, AMADADA SOFTWARE INC agrees to defend Customer at AMADADA SOFTWARE INC’ sole cost and indemnify Customer (by paying for damages finally awarded against Customer or any amounts payable in any settlement entered into by Customer in compliance with this Agreement) from and against any claims, demands, actions or proceedings by any third parties alleging that the Software hereunder infringes or violates any third party’s Canadian intellectual property rights; provided that: (i) AMADADA SOFTWARE INC is notified promptly in writing of the claim; (ii) AMADADA SOFTWARE INC controls the defense, settlement and approval of the claim; and (iii) Customer cooperates reasonably, assists and gives all necessary authority to AMADADA SOFTWARE INC and reasonably required information in connection with the defense or settlement of the claim.

8.2.2. AMADADA SOFTWARE INC’ indemnity obligations under subsection 8.2.1 hereof will not apply if and to the extent that they arise from or relate to: (i) the use of the Software in any form or substance other than as provided by AMADADA SOFTWARE INC hereunder and as required to be used by Customer hereunder; (ii) the modification of the Software by Customer or any third party not authorized in writing by AMADADA SOFTWARE INC to do so; (iii) the use of the Software in combination with any intellectual property, services, reports, documentation, hardware, software, data or technology not supplied by AMADADA SOFTWARE INC or approved by AMADADA SOFTWARE INC in writing; or (iv) any data or information, or other intellectual property, supplied by Customer or an Authorized User or third party (other than AMADADA SOFTWARE INC).

8.2.3. If any Software becomes, or in AMADADA SOFTWARE INC’ opinion, is likely to become, the subject of a third party claim covered by AMADADA SOFTWARE INC’s indemnification obligations under subsection 8.2.1, then AMADADA SOFTWARE INC may, in its sole discretion and at its sole cost and expense: (i) procure for Customer the right to continue using such Software; (ii) modify the infringing portion of the Software so as to render it non-infringing but still appropriate for its intended use under this Agreement; or (iii) replace the infringing portion of the Software with non-infringing items with substantially similar functionality. If AMADADA SOFTWARE INC reasonably determines that none of the foregoing is commercially practicable, then AMADADA SOFTWARE INC may elect to terminate this Agreement and grant Customer a refund of all prepaid but unused portions of the Fees previously paid to AMADADA SOFTWARE INC related to the Software in question. This Section 8.2.3 states AMADADA SOFTWARE INC’s entire liability and the sole and exclusive remedy of Customer and any Authorized User for any claim of infringement.

8.3. Limited Warranty. EXCEPT AS STATED IN SUBSECTION 8.1, THE SOFTWARE, THE DELIVERABLES AND ANY THIRD

PARTY SOFTWARE ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. AMADADA SOFTWARE INC DISCLAIMS AND EXCLUDES ANY AND ALL OTHER WARRANTITES INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IRRESPECTIVE OF ANY COURSE OF DEALING OR PERFORMACE, CUSTOM OR USAGE OF TRADE. CUSTOMER BEARS THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE AND THE DELIVERABLES. AMADADA SOFTWARE INC DOES NOT WARRANT THAT THE SOFTWARE OR DELIVERABLES WILL BE UNINTERRUPPTED OR THAT THE SOFTWARE WILL PROPERLY OPERATE ON ANY SPECIFIC OPERATING SYSTEM OR COMPUTER HARDWARE OR CONFIGURATIONS OR BEFORE OR AFTER ANY SPECIFIC DATE OR TIME PERIOD. CUSTOMER WILL BE SOLELY RESPONSIBLE FOR THE SELECTION, USE AND SUITABILITY OF THE SOFTWARE AND AMADADA SOFTWARE INC WILL HAVE NO LIABILITY THEREFORE. NO EMPLOYEE OR AGENT OF AMADADA SOFTWARE INC OR ANY OF ITS SUBSIDIARIES OR AFFILIATES IS AUTHORIZED TO MAKE ANY STATEMENT THAT ADDS TO OR AMENDS ANY OF THE WARRANTIES OR LIMITATIONS CONTAINED IN THIS AGREEMENT.

8.4 Limitation of Liability and Damages. NEITHER AMADADA SOFTWARE INC NOR ITS SUPPLIERS OR LICENSORS WILL HAVE ANY LIABILITY TO CUSTOMER OR ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, ANY CONTRACTOR, AGENT OR AFFILIATE OF CUSTOMER) FOR ANY LOSS OF PROFITS, SALES, BUSINESS, DATA, OR OTHER INCIDENTAL, CONSEQUENTIAL, OR SPECIAL LOSS OR DAMAGE, INCLUDING EXEMPLARY AND PUNITIVE DAMAGES, OF ANY KIND OR NATURE RESULTING FROM OR ARISING OUT OF THIS AGREEMENT, THE SOFTWARE, AND/OR DELIVERABLES.

THE TOTAL LIABILITY OF AMADADA SOFTWARE INC AND ITS SUPPLIERS AND LICENSORS TO CUSTOMER OR ANY THIRD PARTY RESULTING FROM OR ARISING OUT OF THIS AGREEMENT, THE SOFTWARE, AND/OR DELIVERABLES FOR ANY AND ALL CLAIMS OR TYPES OF DAMAGES WILL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE FOR THE SOFTWARE HEREUNDER BY CUSTOMER.

AMADADA SOFTWARE INC is not an insurer with regard to performance of the Software or Deliverables.

Customer agrees to assume the risk for: (a) all liabilities disclaimed by AMADADA SOFTWARE INC herein, and (b) all alleged damages in excess of the amount of the limited remedy provided hereunder. The allocations of liability in this subsection 8.4 represent the agreed, bargained-for understanding of the parties and AMADADA SOFTWARE INC’ compensation hereunder reflects such allocations. THE LIMITATION OF LIABILITY AND TYPES OF DAMAGES STATED IN THIS AGREEMENT ARE INTENDED BY THE PARTIES TO APPLY REGARDLESS OF THE FORM OF LAWSUIT OR CLAIM A PARTY MAY BRING, WHETHER IN TORT, CONTRACT OR OTHERWISE, AND REGARDLESS OF WHETHER ANY LIMITED REMEDY PROVIDED FOR IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.

8.5 Third Party Products. Some documentation, products, and the Software itself may contain code, content, features,

functionality, and components that are provided by third-parties. Furthermore, some Software may require data and information

from third-parties in order to work properly. These third-party products may or may not have additional licensing requirements

independent of AMADADA SOFTWARE INC. It is agreed that any additional licenses required to access said third-party products will be negotiated solely between Customer and any third-party unless otherwise specified by AMADADA SOFTWARE INC. ANY AMADADA SOFTWARE INC-PROVIDED THIRDPARTY PRODUCTS WILL BE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND BY AMADADA SOFTWARE INC. ALL RIGHTS AND OBLIGATIONS WITH RESPECT TO SAID AMADADA SOFTWARE INC PROVIDED THIRD-PARTY PRODUCTS WILL BE GOVERNED EXCLUSIVELY BY THE TERMS AND CONDITIONS OF AGREEMENTS PROVIDED BY SUPPLIERS OF SAID THIRD-PARTY PRODUCTS AND CUSTOMER HEREBY RELEASES AMADADA SOFTWARE INC FROM ALL LIABILITY AND RESPONSIBILITY WITH RESPECT THERETO.

 

9. DISPUTE RESOLUTION

9.1. Force Majeure. Except for payment obligations, neither party hereto will be held liable for the failure to perform any obligation,

or for the delay in performing any obligation, arising out of or connected with this Agreement if such failure or delay results from or is contributed to by any cause beyond the reasonable control of such party including, but not limited to, failures or delays caused by the act or omission of any governmental authority, fire, flood, or other event beyond such party’s reasonable control.

9.2. Licensing Audit. Upon AMADADA SOFTWARE INC’ written request, Customer will furnish AMADADA SOFTWARE INC with a signed certificate verifying that Customer’s version of the Software is being used (a) pursuant to the terms of this Agreement, (b) only at the Designated Office(s) and (c) only by Authorized Users. At its expense, AMADADA SOFTWARE INC may audit Customer’s compliance with the requirements of this Agreement. Any such audit will be conducted during regular business hours at Customer’s facilities and will not unreasonably interfere with Customer’s business activities. During any such audit AMADADA SOFTWARE INC will be allowed to interview any of Customer’s employees and contractors. If AMADADA SOFTWARE INC determines that Customer has not paid appropriate license or other fees for use of the Software or Deliverables at any location, Customer will be invoiced for such license and other fees, plus an additional 1.5% monthly interest rate, or the maximum lawful amount, of the unpaid fees (dating back to the time when such fees should have been paid). AMADADA SOFTWARE INC will recoup and Customer will pay the reasonable cost of the audit if the audit detects unpaid fees that exceed five percent (5%) of the total fees actually paid for the period so audited. This right will not limit or preclude any additional remedies available to AMADADA SOFTWARE INC provided by law or equity.

9.3. Time Limit on Claims. Except for collection actions which may be brought by AMADADA SOFTWARE INC at any time and without limiting claims for indemnification hereunder, no action arising out of any claimed breach of this Agreement or transactions under this Agreement may be brought by either party more than one (1) year after the event which gives rise to the specific cause of action.

9.4. Jurisdiction. The parties hereto, and each of them, acknowledge that they have had the opportunity to be represented by independent counsel of their choice prior to entering this Agreement. Customer agrees that this Agreement will be interpreted and enforced according to the laws of the Province of British Columbia, without any regard to conflicts of law rules, and will be treated as if executed and performed in Vancouver, B.C. All disputes surrounding the performance of this Agreement and/or Deliverables will be instituted and prosecuted exclusively in Vancouver, B.C., with Customer specifically consenting to extraterritorial service of process for that purpose. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply in any respect to this Agreement or to the parties in general.

9.5. Waiver of Jury Trial. EACH PARTY, TO THE EXTENT PERMITTED BY LAW, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS IT CONTEMPLATES.

9.6. Enforcement. Customer will pay all of AMADADA SOFTWARE INC’ attorneys’ fees and costs and expenses incurred in the enforcement of any of the provisions of this Agreement.

9.7. Remedies. Customer acknowledges that the Software and other proprietary information of AMADADA SOFTWARE INC are unique and that, in the event of any breach of this Agreement by Customer, AMADADA SOFTWARE INC may not have an adequate remedy at law, and will be entitled to seek enforcement of its rights hereunder by an action for damages and/or specific performance and/or injunctive or other equitable relief without the necessity of proving actual damages. Unless specifically stated otherwise elsewhere in this Agreement, the various rights, options, elections, powers and remedies of a party or parties to this Agreement will be construed as cumulative and no one of them exclusive of any others or of any other legal or equitable remedy, which said party or parties might otherwise have in the event of breach or default in the terms hereof.

9.8. Notices. All notices, demands, consents or requests given by a party hereto will be in writing and sent by delivery via a third party, nationally recognized overnight express mail service or by Canaidan certified mail, postage prepaid, addressed to Customer’s billing address. If such notice, demand, consent or request is given by mail, such notice will be conclusively deemed given five (5) days after deposit thereof in the Canadian mail.

9.9. Enforceability. In the event that any of the provisions, or portions thereof, of this Agreement are held to be unenforceable or invalid by any court of competent jurisdiction, the validity and enforceability of the remaining provisions and portions thereof of this Agreement will not be affected thereby.

9.10. Waiver. AMADADA SOFTWARE INC’ failure or delay to require compliance with the conditions of this Agreement, or to exercise any right provided herein, will not be deemed a waiver by AMADADA SOFTWARE INC of such condition or right. No failure or delay in exercising any right or remedy or requiring the satisfaction of any condition under this Agreement, and no course of dealing between the parties, will operate as a waiver or legally bar AMADADA SOFTWARE INC from enforcing any right, remedy or condition. A waiver made in writing on one occasion is effective only in that instance and only for the purpose that it is given and is not to be construed as a waiver on any future occasion.

 

10. CONFIDENTIALITY

10.1. Nonuse and Nondisclosure. Customer and AMADADA SOFTWARE INC agree that during the term hereof and for four (4) years after termination or expiration of this Agreement, or for such longer period as required by law in the case of PII (see subsection 10.2), all information furnished or disclosed to the other pursuant to this Agreement, including, without limitation, the terms of Customer’s Order Confirmation, proprietary information within the Software, and any discussions between the parties regarding other potential business relationships (the “Confidential Information”), will be held in strict confidence by the other party, and will not be used, made available or disclosed to any third party without the other party’s prior written consent. Each party also agrees to restrict dissemination of such Confidential Information to only those persons in their respective organizations or third-party consultants or service providers who have a need to know such Confidential Information to perform the obligations under this Agreement. Each party will be deemed to have fulfilled its confidentiality obligations under this Section 10 if it affords the other party’s Confidential Information at least the same degree of care it takes in protecting its own confidential information from unauthorized disclosure (but in no event using less than a reasonable degree of care).

10.2. Personally Identifiable Information. Notwithstanding anything in subsection 10.1 to the contrary, Customer authorizes AMADADA SOFTWARE INC to transmit the personally identifiable information (“PII”) of the taxpayer clients of Customer as submitted to AMADADA SOFTWARE INC by Customer to customer’s accountant and the taxing authorities, as well as to certain third-party service providers that AMADADA SOFTWARE INC may use in conjunction with the services it renders hereunder, subject to applicable laws and regulations.

10.3. Exceptions. Notwithstanding the above restrictions, neither party will have any obligation for any nonuse or nondisclosure of

Confidential Information which (i) is now in, or subsequently enters, the public domain through means other than disclosure of a party hereto in breach of the terms of this Agreement; (ii) is lawfully obtained from a third party without binder of secrecy; (iii) is independently developed by such party without reference to the Confidential Information or is already lawfully in the possession of the receiving party free of any obligation of confidence to the other party; or (iv) is required to be disclosed by law, by court order or by order of any government or administrative tribunal having jurisdiction over the recipient, provided that the recipient will notify the disclosing party of any such requirement prior to disclosure (except where the disclosing party is being investigated for criminal activity by a state or federal agency and such agency specifically requests that prior disclosure not be made by the recipient) in order to afford such other party an opportunity to seek a protective order to prevent or limit disclosure, and the recipient will reasonably cooperate with the disclosing party’s efforts to obtain such protective order.

10.4. Expiration. Upon termination or expiration of this Agreement, both parties agree to destroy all copies of written Confidential Information, including, without limitation, all electronically stored copies. However, each party will be entitled to retain copies of the other party’s Confidential Information preserved or recorded or saved automatically to standard back-up or archival systems. Moreover, AMADADA SOFTWARE INC may retain a copy of such Confidential Information for the sole purpose of and to the extent necessary for AMADADA SOFTWARE INC to comply with applicable and legal, regulatory, and/or reasonable internal archival policies and requirements (with such Confidential Information otherwise remaining subject to the terms and conditions of this Section 10). The disclosing party will retain all proprietary rights to the information it discloses hereunder, regardless of the expiration of the obligations under this Section 10.

 

11. MISCELLANEOUS

11.1. Entire Agreement. This Agreement, along with the Order Confirmation and any other terms referenced by this Agreement but otherwise published by AMADADA SOFTWARE INC outside of this Agreement, constitutes the entire and exclusive agreement, understanding and representation, express or implied, between Customer and AMADADA SOFTWARE INC with respect to the Software and Deliverables to be furnished hereunder; it is the final expression of that agreement and understanding, and it supersedes all prior agreements and communications between the parties (including all oral and written proposals). In the event of a conflict, this Agreement will control, then the Order Confirmation, and then any other terms provided by AMADADA SOFTWARE INC, unless AMADADA SOFTWARE INC explicitly acknowledges and upholds the particular conflict in such other document. Oral statements made by AMADADA SOFTWARE INC’s representatives about the Software and/or Deliverables do not constitute warranties, will not be relied on by Customer, and are not part of this Agreement. No supplement, modification or amendment of this Agreement will be binding unless executed in writing by AMADADA SOFTWARE INC and Customer after reasonable opportunity to accept or reject such supplement, modification or amendment. AMADADA SOFTWARE INC reserves the right to revise, in its discretion, this Agreement for future versions, Updates, renewals and/or upgrades of the Software.

11.2. No Clause

11.3. Contact Information. Customer agrees to always provide AMADADA SOFTWARE INC with Customer’s most current contact information, including Customer’s address, phone number, fax number and e-mail address. Customer also agrees to provide AMADADA SOFTWARE INC with Customer’s BIN.

11.4. No Clause

11.5. Modification/Replacement of Software/Deliverables. AMADADA SOFTWARE INC reserves the right, in its sole discretion and without first consulting with Customer, to discontinue or modify the Software or Deliverables for any reason. AMADADA SOFTWARE INC may choose to replace any discontinued product, in which case AMADADA SOFTWARE INC will provide Customer with the opportunity to purchase such replacement product. If Customer purchases software that is discontinued prior to its shipment to Customer, AMADADA SOFTWARE INC will provide Customer with a refund of the Fees paid toward such software.

11.6. Data Transmission Notification. AMADADA SOFTWARE INC’ tax preparation software may also transmit to AMADADA SOFTWARE INC’s outsourced servers certain tax records that Customer has created while using the Software but that Customer did not otherwise transmit. AMADADA SOFTWARE INC may use this transmitted data for internal quality assurance and software error checking, as well as to assist users with multiple offices. Transmitted data is limited to records created with or by the Software only and is not transmitted to the CRA. AMADADA SOFTWARE INC does not attempt to access any other information on Customer’s computer that is not related to the Software.

11.7. Assignment. Neither the License granted hereunder nor the Software may be sublicensed, assigned, sold, hypothecated, or transferred by Customer without the prior written consent of AMADADA SOFTWARE INC. Any attempt to sublicense, assign or transfer any of the rights, duties or obligations under this Agreement without the prior written consent of AMADADA SOFTWARE INC will terminate the License automatically and will be void and of no effect. Customer agrees that AMADADA SOFTWARE INC’ retention of these contractual and other legal rights is an essential part of this Agreement.

11.8. Delivery. Delivery of the Software to Customer will take place when it becomes available to the entire client base of AMADADA SOFTWARE INC. Customer acknowledges that the Software and all Updates thereof are pre-written software of general application. All Deliverables will be delivered to Customer remotely via the internet.