END USER LICENSE AGREEMENT FOR ROCKTON'S TAX PROCESSING APPLICATION
Last Updated: March 2017
This End User License Agreement (the "Agreement") is an agreement between Rockton Software, Inc. ("Rockton Software") and the end user (the "Customer") of the Rockton Software Tax Processing Application (the "Service"). This Agreement consists of the below terms and conditions and the pricing and payment terms made available relating to the Service. The Service also may contain other posted notices or codes of conduct, which are incorporated by reference into this Agreement.
Please read this Agreement carefully. BY SUBSCRIBING TO AND/OR USING ANY OF THE SERVICE, CUSTOMER AGREES TO BE BOUND BY THIS AGREEMENT, INCLUDING ANY MODIFICATIONS MADE TO IT FROM TIME TO TIME. IF CUSTOMER DOES NOT AGREE TO THE TERMS AND CONDITIONS IN THIS AGREEMENT, IT MAY NOT SUBSCRIBE TO OR USE THE SERVICE.
LICENSE GRANT - WHAT CUSTOMER IS LICENSED TO USE
- General. Rockton Software grants Customer a "License" to the Services ordered by Customer, subject to Customer's obligation to pay Rockton and/or a licensed reseller of Rockton and any rights and limitations described in this Agreement. This License is non-exclusive, non-perpetual, and is not transferable. The ability to use Services may be affected by minimum system requirements or other factors. Rockton Software reserves all rights not expressly granted.
- Microsoft Dynamics 365. Customer must maintain an active licensed version of Microsoft Dynamics 365 and comply with all associated terms, licenses, and/or agreements with Microsoft Dynamics 365 in order to receive, use, and/or maintain this License to the Services from Rockton Software. Customer agrees and acknowledges that failure to have a licensed copy of Microsoft Dynamics 365 may result in the inability to use the Service.
- Unsupported Versions of Microsoft Dynamics 365. Customer may only use the Microsoft supported current version of Microsoft Dynamics 365 with this Service. If Customer has a version that is no longer supported by Microsoft, Customer agrees and acknowledges that the Service may not be supported by Rockton Software and may result in the inability to use the Service.
- Client Software. Customer may need to install Client Software, which is defined as any software required to run the Rockton Software which includes, but is not limited to, a Microsoft Operating System and Microsoft Dynamics 365, to access and use the Service. Customer may make copies of the Client Software solely to support the Service for its Users. Copies must be true and complete copies (including copyright and trademark notices) and be made from a Rockton Software approved media or a network source. Customer may use a third party to make and install these copies, but Customer agrees that it will be responsible for that third party's actions. Customer agrees to use reasonable efforts to make its employees, agents, and other individuals that it allows to use the Client Software aware that it is licensed from Rockton Software and subject to the terms of this Agreement. Additional rights and restrictions for the Client Software may accompany the provision of such Client Software, and Customer agrees to abide by all such additional rights and restrictions.
- Limitations on Use. Customer shall not reverse engineer, decompile or disassemble the Service or Client Software, except where applicable law permits it despite this limitation. Customer shall not rent, lease, lend, resell, or host to or for third parties any Service or Client Software.
- New Versions of Microsoft Dynamics 365. While Rockton Software makes all reasonable efforts to support the newest versions of Microsoft Dynamics 365 upon release of the new version, Rockton Software can only guarantee that the Service will work with the newest versions of Microsoft Dynamics 365 within six weeks of the release of such software.
ORDERING, PRICING, PAYMENTS, RENEWALS AND TAXES
- Ordering. Customer shall place an order (an "Order") for each subscription ("Subscription") for a Service via any means made available by Rockton Software and/or a licensed third party reseller for such Order which shall state the length of time of the Subscription (the "Term"). If Customer desires to use the Service for more than the total number of User Licenses available through the Service level it subscribed to, it must subscribe to the appropriate Service level prior to commencing any such use. If Customer desires to reduce the total number of Users, it may do so, subject to the cancellation fees set forth in this Agreement. Any Services added to a Subscription will expire at the end of the Term. Each Subscription shall be for a defined Term (e.g., 30 days or 12 months).
- Subscription Fees. "Subscription Fee" means the amount Customer is required to pay for the Subscription to the Service and Client Software, which may be billed monthly, quarterly, or annually. Customer may be required to pay the Subscription Fee in advance, in arrears or both. Rockton Software and/or a licensed third party reseller may charge Customer at one time for more than one billing period. Subscription Fees are available via the Order or other means made available by Rockton Software. Payments are due and must be paid in accordance with the Order. Price level changes are not retroactive. Prices for each price level are fixed at the time the Subscription is first placed and apply throughout the Term. Subscription Fees are subject to change at the beginning of any Subscription renewal period.
- Renewal. Unless the offer specifically states otherwise, Customer's Subscription will automatically renew at the expiration of the Term. Customer and Rockton Software agree that if either Customer or Rockton Software have terminated this Agreement under 4.1 or 4.2, any automatic renewal will no longer be valid.
- New Agreement. Prior to placing new Orders, renewing any Subscriptions, or further use of the Services, and upon notice, Rockton Software may require that Customer enter into an updated agreement to govern Orders, renewal subscriptions, or usage from that date forward.
- Taxes and other Incidental Charges. The prices and rate plans do not include any taxes, phone and Internet access charges, mobile text messaging, wireless service and other data transmissions, unless stated otherwise. Customer is responsible for all such incidental charges and any taxes and it is legally obligated to pay including, but not limited to, paying Rockton Software any applicable value added, sales or use taxes or like taxes that are permitted to be collected from Customer by Rockton Software under applicable law. If any taxes are required by law to be withheld on payments made by Customer to Rockton Software and/or a licensed third party reseller, Customer may deduct such taxes from the amount owed Rockton Software and pay them to the appropriate taxing authority; provided, however, that Customer shall promptly secure and deliver to Rockton Software and/or a licensed third party reseller an official receipt for any such taxes withheld or other documents necessary to enable Rockton Software to claim a Foreign Tax Credit. Customer will make certain that any taxes withheld are minimized to the extent possible under applicable law.
- Refunds. All charges are non-refundable unless expressly stated otherwise, or otherwise provided by law.
- Late Payments. Except to the extent prohibited by law, Rockton Software and/or a licensed third party reseller may assess a late charge if Customer does not pay on time, regardless of any disputes Customer may have raised about its bill. Customer must pay these late charges as and when billed by Rockton Software and/or a licensed third party reseller. The late charge will be the lesser of 1% of the unpaid amount each month or the maximum rate that is permitted by law. Rockton Software and/or a licensed third party reseller may use a third party to collect past due amounts. Customer must pay for all reasonable costs incurred by Rockton Software and/or a licensed third party reseller to collect any past due amounts. These costs may include reasonable attorneys' fees and other legal fees and costs. Rockton Software and/or a licensed third party reseller may suspend or cancel the Service if Customer does not pay in full and on time.
During the Term of any Subscription and for three years thereafter, Customer must keep all usual and proper records relating to the Subscription(s) and Customer's use of the Services and/or Client Software under this Agreement. Rockton Software may request that Customer conduct an internal audit of all Services in use throughout Customer's organization, comparing the number of User Licenses in use to the number of User Licenses issued to and/or paid for by Customer. By requesting an audit, Rockton Software does not waive its rights to enforce this Agreement or to protect Rockton Software's intellectual property by any other means permitted by law. If verification or self-audit reveals any unlicensed use, Customer must promptly order sufficient Licenses to cover its past and present use. If material unlicensed use is found, Customer must reimburse Rockton Software for the costs Rockton Software has incurred in verification and acquire the necessary additional Licenses at single retail license cost within 30 days.
TERM AND TERMINATION
- Termination by Rockton Software. Rockton Software may cancel or suspend Customer's use of the Service or a portion thereof at any time if Customer violates the terms of this Agreement, if Rockton Software believes that Customer's use of the Service represents a direct or indirect threat to its network function or integrity or anyone else's use of the Service, or if Rockton Software is otherwise required by law to do so. Upon notification by Rockton Software of any such cancellation or suspension, Customer's right to use the Service will stop immediately. Cancellation or suspension of the Service for Customer's violation of the terms of this Agreement will not change Customer's obligation to pay any Subscription fees due for the applicable Term.
- Termination by Customer. Customer may terminate a Subscription or reduce the number of User Licenses at any time during its Term provided that Customer will still be required to pay any amounts remaining for the Term that still remain as if the Subscription had not been cancelled.
- Effect of Termination. Upon termination or cancellation of the Service by either party for any reason, Client will be able to access their data in a read-only status if stored on their network but will be unable to perform any transactions with it.
- Waiver of Rights and Obligations. To the extent necessary to implement the termination of this Agreement, each party waives any right and obligation under any applicable law or regulation to request or obtain intervention of the courts to terminate this Agreement.
- No Liability for Deletion of Data. Customer acknowledges that, other than as expressly described in these terms, should any data that is owned by Customer be provided to Rockton Software, Rockton Software will have no obligation to continue to hold, export or return Customer's data. Customer acknowledges that Rockton Software will have no liability whatsoever for deletion of data pursuant to these terms.
- Personal Data. Personal data collected through the Service may be transferred, stored and processed in the United States or any other country in which Rockton Software or its service providers maintain facilities. This includes any personal data Customer collect using the Service. By using the Service, Customer consent to transfer of personal data outside of Customer's country. Customer also agree to obtain sufficient authorization from persons providing personal data to Customer, to (a) transfer that data to Rockton Software and its agents, and (b) permit its transfer, storage and processing.
- Our Use of Customer Data and Third Party Requests. Customer data will be used only to provide Customer the Service. This may include troubleshooting aimed at preventing, detecting and repairing problems affecting the operation of the Service and the improvement of features that involve the detection of, and protection against, emerging and evolving threats to the user (such as malware or spam). Rockton Software will not disclose customer data to a third party (including law enforcement, other government entity, or civil litigant; excluding our subcontractors) except as Customer direct or unless required by law. Should a third party contact Rockton Software with a demand for customer data, Rockton Software will attempt to redirect the third party to request it directly from Customer. As part of that, Rockton Software may provide Customer's basic contact information to the third party. If compelled to disclose customer data to a third party, Rockton Software will use commercially reasonable efforts to notify Customer in advance of a disclosure unless legally prohibited. Customer is responsible for responding to requests by a third party regarding Customer's use of the Service, such as a request to take down content under the Digital Millennium Copyright Act.
USE RIGHTS AND LIMITATIONS
In using the Service, Customer will:
Customer may not:
- comply with all local, state, and federal laws;
- comply with any codes of conduct or other notices in writing provided by Rockton Software to Customer;
- promptly notify Rockton Software if it learns of a security breach or unauthorized access related to the Service.
- use the Service in any way that harms Rockton Software or its resellers, distributors and/or vendors (collectively, the "Rockton Software parties"), or any customer of a Rockton Software party or the Service or other Users;
- engage in, facilitate, or further unlawful conduct through the use of the Rockton Software and/or Service;
- resell or redistribute the Service, or any part of the Service, unless Customer has a contract with Rockton Software that permits it to do so;
- use any portion of the Service as a destination linked from any unsolicited bulk messages or unsolicited commercial messages ("spam");
- use any unauthorized automated process or service to access and/or use the Service (such as a BOT, a spider, periodic caching of information stored by Rockton Software or "meta-searching"), however, periodic automated access to the Service for report creation or scheduling is permitted;
- use any unauthorized means to modify or reroute, or attempt to modify or reroute, the Service or work around any of the technical limitations in the Service;
- modify, create derivative works from, reverse engineer, decompile or disassemble or otherwise attempt to discover any trade secret contained in the Service or in any technology, or system used by Rockton Software in connection with providing the Service, except and only to the extent that applicable law expressly permits Customer to do so despite this limitation;
- build a product or service using similar ideas, features, functions or graphics of the Service; and/or
- copy any ideas, features, functions or graphics of the Service.
- Limits on Service. Rockton Software may establish limits on the Service. For example, it may limit the number of days the Service will retain any content that Rockton Software, Customer or its Users provide, the maximum storage space on Rockton Software's servers available to Customer, if any, the number of Service accounts to which Customer may subscribe, how long Rockton Software retains an inactive Service account (one where Customer does not sign in to the Service for an extended period of time); the number of transactions Customer can conduct through the Service, and the number of asynchronous transactions that can be executed with an organization.
- Third Party Software. Customer is solely responsible for any third party software installed in or used with the Services, including the use of Microsoft Dynamics 365. Rockton Software is not a party to and is not bound by any terms governing Customer's use of the third party software, Customer acknowledges that it will direct and control the installation in and use of such software with the Service. Rockton Software will not run or make any copies of third party software licensed by the Customer except to support Customer's use of the Service. Customer may not install or use the third party software in any way that would subject Rockton Software's intellectual property or technology to obligations beyond those included in the Agreement. Rockton Software does not, and will not have any obligation to, provide technical or other support for any third party software. Rockton Software does not make any representation or guaranty that any third party software will operate successfully with the Service or continue performing after an update, upgrade, services patch, support fix or platform migration has been made to the Service.
- Links to Third-Party Websites. The Service may contain links to third-party websites. These third-party websites are not under Rockton Software's control. If Rockton Software has included these links in the Service, it provides them as a convenience only. The inclusion of these links is not an endorsement by Rockton Software of any third-party website, service or product. Rockton Software reserves the right to disable links to any third-party website that Customer posts on the Service.
Only Customer may use its Service account. However, Rockton Software may allow Customer to setup additional member accounts that are dependent on Customer's account (an "associated account"). Rockton Software may limit associated accounts. Customer is responsible for all activity under its Service account, associated accounts and passwords. Customer is solely responsible for monitoring usage of its Service account and for any use or misuse of its Service account or the Service resulting from any associated account or any third party using any password or user name selected by or issued to Customer. If Customer is the authorized User of an associated account, then the person or entity that gave Customer access to the Service (the account holder) has full control over Customer's associated account. This control includes the right to end the Service, close or alter Customer's associated account at any time, and, in some cases, request and receive machine and Service usage information related to Customer's associated account.
Rockton Software and Customer shall treat the terms and conditions of this Agreement as confidential and shall not disclose them to any third party except in the furtherance of the parties' business relationship with each other. For government Customers, this Section is subject to the requirements of applicable trade secret, public records, or similar laws.
Limited warranty. Rockton Software warrants that the Services and Client Software will conform substantially to the description of it contained in the applicable Rockton Software user documentation. This limited warranty is subject to the following limitations:
- this limited warranty applies only during the Term, including any renewals ("Warranty Period");
- any implied warranties, guarantees or conditions not able to be disclaimed as a matter of law will last only during the Warranty Period;
- this limited warranty does not cover problems caused by accident, abuse or use of the Services in a manner inconsistent with this Agreement, or resulting from events beyond Rockton Software's reasonable control;
- this limited warranty does not apply to problems caused by the failure to meet minimum system requirements; and
- this limited warranty does not apply to downtime or other interruption in access to the Services.
- Remedies for Breach of Limited Warranty. If Customer notifies Rockton Software within the Warranty Period that a Service does not meet the limited warranty, then Rockton Software will, at its option, either (1) return the amount paid for the Service during the (a) Term or (b) 12 months prior to delivery of notice to Rockton Software, whichever is less, or (2) update such Service to make it conform. These are Customer's only remedies for breach of the limited warranty, unless other remedies are required to be provided under applicable law.
- DISCLAIMER OF OTHER WARRANTIES. Other than this limited warranty, Rockton Software provides no other express or implied warranties. Rockton Software disclaims any implied representations, warranties or conditions, including warranties of merchantability, fitness for a particular purpose, satisfactory quality, title or non-infringement. Rockton Software does not warranty that this product will work for any particular user or that the use will conform with such user's current business or accounting practices. These disclaimers will apply unless otherwise required by applicable law.
LIMITATION OF LIABILITY
Limitation on Liability. Except as otherwise provided in this Section, to the extent permitted by applicable law, the liability of Rockton Software and of Rockton Software's contractors to Customer arising under this Agreement is limited to direct damages up to the amount Customer paid Rockton Software for the Service and/or Client Software giving rise to that liability during the (1) Term or (2) twelve months prior to the filing of the claim, whichever is less. These limitations apply regardless of whether the liability is based on breach of contract, tort (including negligence), strict liability, breach of warranties, or any other legal theory. However, these monetary limitations will not apply to:
- Customer's use of Rockton Software's trademark(s) without express written consent to do so;
- liability for damages awarded by a court of final adjudication for Rockton Software's or its employees' or agents' gross negligence or willful misconduct;
- liabilities arising out of any breach by Rockton Software of its obligations under the Section entitled "Confidentiality"; or
- liability for personal injury or death caused by Rockton Software's negligence or that of its employees or agents or for fraudulent misrepresentation.
- EXCLUSION OF CERTAIN DAMAGES. To the extent permitted by applicable law, whatever the legal basis for the claim, neither party, nor any of its affiliates or suppliers, will be liable for any indirect damages (including, without limitation, consequential, special or incidental damages, damages for lost profits or revenues, business interruption, or loss of business information) arising in connection with this agreement, even if advised of the possibility of such damages or if such possibility was reasonably foreseeable. However, this exclusion does not apply to either party's liability to the other for violation of its confidentiality obligations or of the other party's intellectual property rights.
Notices. Notices, authorizations, and requests to Rockton in connection with this Agreement must be sent by regular or overnight mail, or express courier, to P.O. Box 921, Lafayette, CO 80026. Notices will be treated as delivered on the date shown on the return receipt. Termination of the Agreement, a Subscription, or cancellation of a Subscription initiated by a Customer should be sent via the Rockton Software customer service contact or, if purchased through a licensed third party reseller, directly to the reseller who is billing the Customer.
Notices, authorizations, and requests to Customers may be emailed to account administrators Customer identifies. Notices are effective on the date on the return receipt or, for email, when sent.
- Assignment. Customer may not assign this Agreement. Rockton Software may assign this Agreement to its Affiliates.
- Severability. If a court holds any provision of this Agreement to be illegal, invalid or unenforceable, the rest of the document will remain in effect and this Agreement will be amended to give effect to the eliminated provision to the maximum extent possible.
- Waiver. A waiver of any breach of this Agreement is not a waiver of any other breach. Any waiver must be in writing and signed by an authorized representative of the waiving party.
- Applicable Law. By using the Service, you agree that the laws of the State of Colorado, without regard to principles of conflict of laws, will govern any disputes between you and Rockton Software. You agree not to commence or prosecute any action in connection therewith other than in the state and federal courts located in Denver, Colorado, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in the state and federal courts of Colorado. The 1980 United Nations Convention on Contracts for the International Sale of Goods and its related instruments will not apply to this Agreement. The Services are protected by copyright and other intellectual property rights laws and international treaties.
- Entire Agreement. This Agreement (including any addendum or amendment to this Agreement which is included with the Software) is the entire agreement between you and Rockton Software relating to the Software and any support services. This Agreement supersedes all prior or contemporaneous oral or written communications, orders, proposals, and representations with respect to the Software or any other subject matter covered by this Agreement. To the extent the terms of any Rockton Software policies or programs for support services conflict with the terms of this Agreement, the terms of this Agreement shall control unless the parties otherwise agree in writing. If any provision of this Agreement is held to be void, invalid, unenforceable, or illegal, the other provisions shall continue in full force and effect.
- Survival. Provisions regarding fees, restrictions on use, transfer of licenses, export restrictions, defense of infringement and misappropriation claims, limitations of liability, confidentiality, compliance verification, obligations on termination and the provisions in this Section entitled "Miscellaneous" will survive termination of this Agreement.
- Force Majeure. Neither party will be liable for any failure in performance due to causes beyond either party's reasonable control (such as fire, explosion, power blackout, earthquake, flood, severe storms, strike, embargo, labor disputes, acts of civil or military authority, war, terrorism (including cyber terrorism), acts of God, acts or omissions of Internet traffic carriers, actions or omissions of regulatory or governmental bodies (including the passage of laws or regulations or other acts of government that impact the delivery of Services)). This Section will not, however, apply to Customer's payment obligations under this Agreement.
- U.S. Export Jurisdiction. The Services are subject to U.S. export jurisdiction. Customer must comply with all applicable laws including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments.
- English Language Controls. The English language version of this Agreement controls any disputes. If Customer is in Canada, it is the express wish of both parties that this Agreement, and any associated documentation, be written and signed in English. C'est la volonté expresse des parties que la présente convention ainsi que les documents qui s'y rattachent soient rédigés en anglais.