END USER LICENSE AGREEMENT
Effective Date: November 9, 2018
1. Your Agreement
The RadTaker technology, as made available via TaxTaker.Com, along with the software, design and associated services specific to RadTaker software platform (collectively “TaxTaker”), and if made available via mobile application, on the Apple iTunes App Store and Google Play are owned and operated by TaxTaker, Inc. (“TaxTaker”) and are licensed to you, as a user (“you”, “your”), in accordance with this End User License Agreement (hereinafter “Agreement”).
YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE A DUTY TO READ THIS AGREEMENT BEFORE YOU DOWNLOAD, INSTALL OR UTILIZE RADTAKER ON YOUR DEVICE, MOBILE OR OTHERWISE. YOUR INSTALLATION, USE, OR OPERATION OF RADTAKER CONSTITUTES YOUR MANIFESTATION OF ASSENT TO AND ACCEPTANCE OF THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU ARE EXPRESSLY PROHIBITED FROM USING RADTAKER AND MUST TERMINATE YOUR USE OF AND UNINSTALL RADTAKER IMMEDIATELY. THIS AGREEMENT DOES NOT REPLACE BUT IS IN ADDITION TO ANY APPLE ITUNES OR GOOGLE PLAY AGREEMENT REQUIRED TO DOWNLOAD AND USE RADTAKER.
TaxTaker and you both acknowledge and agree that Apple and Google, and their subsidiaries, are third party beneficiaries of the Agreement, and that, upon your acceptance of this Agreement, Apple and Google will have the right (and will be deemed to have accepted the right) to enforce the Agreement against you as a third-party beneficiary thereof. TaxTaker and you both further acknowledge and agree that this Agreement is between us only, and not Apple or Google, and that maintenance and support, warranties, product claims and intellectual property infringement disputes are not the responsibility of Apple or Google. TaxTaker is solely responsible for the investigation, defense, settlement, and discharge of any such claims.
TaxTaker reserves the right, in its sole and absolute discretion, to discontinue, change, and/or update RadTaker or to modify, change, replace, or discontinue this Agreement. If TaxTaker modifies, changes, or discontinues the terms of this Agreement, the Effective Date, located above, will change. Your installation or use of RadTaker after a change in the Effective Date of this Agreement constitutes your acceptance of and manifestation of assent to any modification, change, or replacement.
2. About RadTaker
TaxTaker’s RadTaker is designed as a Research and Development (“R&D”) tax credit tool for use of CPAs and their eligible clients. RadTaker allows comopanies and CPAs to input information related eligible Qualified Research Expenditures (“QREs”) and Qualified Research Activities (“QRAs”). Based upon the information you provide, RadTaker and your CPA will calculate an R&D tax credit estimate and provide the forms necessary to submit a claim for R&D tax credits through your payroll processor, Certified Public Accountant (CPA) or other tax professional. All information related to QREs and QRAs used to generate an R&D tax credit estimate are provided exclusively by you and your CPA, with minimal verification by TaxTaker.
TaxTaker, via RadTaker, is a mere service provider and makes no representation as to the accuracy of the R&D tax credit information provided by you and the resulting estimate calculation thereof, estimated R&D tax credit returns, or amount of R&D tax credits actually received, or as to the effectiveness, adequacy, accuracy, availability, prices, or legality of the information contained on RadTaker.You should independently verify any and all information or questions regarding R&D tax credits with a CPA or other licensed tax professional.
Your submission of R&D tax credit information to TaxTaker and reliance upon any information provided by TaxTaker in RadTaker is solely at your own risk.TaxTaker is not responsible for any personal, property or other loss, inconvenience, damage of any kind, or Internal Revenue Service (“IRS”) audits or penalties, as more fully set forth below.
YOU ARE SOLELY RESPONSIBLE FOR YOUR OWN ACTIONS AND THE R&D TAX INFORMATION YOU INPUT, IN WHATEVER FORM, WHEN USING RADTAKER.YOU UNDERSTAND AND AGREE THAT THE CONTENT ON RADTAKER DOES NOT CONTAIN OR CONSTITUTE TAX ADVICE OR R&D TAX REPRESENTATIONS TO BE REASONABLY RELIED UPON.TAXTAKER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND AS TO THE ACCURACY OF THE ESTIMATED R&D TAX CREDITS OR THE AMOUNT OF R&D TAX CREDITS ACTUALLY RECEIVED AS A RESULT OF USING RADTAKER TO FILL OUT AND SUBMIT R&D TAX CREDIT FORMS.
3. Downloading and Registration of RadTaker
You acknowledge and agree that you alone are responsible for, and TaxTaker will not be held liable for, any costs or fees incurred by you through your use of RadTaker, including but not limited to mobile carrier charges, rates or fees, SMS or other text message fees, or payment provider fees.
4. User Responsibility for R&D Tax Information
You are solely responsible for the R&D Tax credit information that User uploads and submits to RadTaker.You represent and warrant that you are providing accurate information, including, without limitation, QREs, QRAs and any other information required in order to allow RadTaker to project the R&D tax credits to which you may be entitled.Your submitted information regarding R&D Tax credits is the source from which TaxTaker generates an estimated R&D Tax credit return through RadTaker.There is no guaranteed minimum amount of R&D Tax credits that you will receive as a result of utilizing RadTaker, and you are prohibited from manipulating RadTaker in order to generate fraudulent, false or otherwise unlawful forms for your ultimate submission to the IRS.Instead, your R&D tax credits will be based upon what is available under law, which you should confirm with your CPA or other licensed tax professional.
5. Your Warranties, Representations, and Obligations
You warrant and agree that you have the right, power, and legal capacity to enter into this Agreement and to adhere to the terms and conditions hereunder. You represent and warrant that you are not bound by or a party to any arrangement or agreement, whether contractual or otherwise, that would prohibit you from downloading or using RadTaker. You further warrant that you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and that you are not listed on any U.S. Government list of prohibited or restricted parties.You warrant and agree that you are a human individual that is at least thirteen (13) years of age or older.If you are 13 or older but under the age of 18, you should review this Agreement with your parent or guardian to make sure that you or your parent or guardian understand it and allows for your use of RadTaker.You agree to comply, in good faith, with the terms of this Agreement.
All users of RadTaker further warrant and agree to be prohibited from, without limitation:
Violating any intellectual property right (trademark, copyright, trade secret or patent), personal or other right of a third party;
Making a personal, on behalf of your company, non-commercial use for the sole reason determining your estimated R&D tax credits;
Framing, scraping, aggregating, hacking, crawling, reproducing, preparing derivative works of, distributing, performing publicly, or displaying publicly RadTaker, whether in whole or in part, without the prior written consent of TaxTaker;
Using any devices, software or automated programs such as spiders, crawlers or robots to access RadTaker and/or systematically index, aggregate, download, harvest or re-publish any of its content or information;
Attempting to reverse engineer, de-compile, hack, disable, translate, or disrupt the features, functionality, integrity, or performance of RadTaker (including any mechanism used to restrict or control the functionality of RadTaker), any third-party use of RadTaker or any third-party data contained therein (except to the extent such restrictions are prohibited by applicable law);
Accessing RadTaker to build a similar or competitive product or service or copy any ideas, features, functions, or graphics of RadTaker, Platform or Services;
Transmitting unsolicited commercial email messages, or spam, through RadTaker or to users of RadTaker;
Misusing another user’s personal information;
Imposing a disproportionate load on RadTaker or its server infrastructure or otherwise attempting to interfere with the operation of RadTaker;
Attempting to gain unauthorized access to RadTaker or to defeat, avoid, bypass, remove, deactivate, or otherwise circumvent any software protection or monitoring mechanisms of RadTaker;
Attempting to gain access to the private data or personal information of a user of RadTaker or a third party;
Harassing and/or stalking a third party through your use of RadTaker;
Impersonating another or creating multiple alias user accounts;
Posting, transmitting, or uploading to or from RadTaker any data, file, software, or link that contains or redirects to a virus, Trojan horse, worm, or other harmful component;
Posting or transmitting content, or using RadTaker in a manner that violates any law, statute, regulation, or ordinance, or treaty, whether local, state, provincial, national, or international; or
Authorizing, permitting, or encouraging any third party to do any of the above.
Your violation of any term or condition of this section or any term of this Agreement may result in the immediate termination of your user account and the disabling of your access to RadTaker.
TaxTaker does not warrant or guarantee that compliance with this Agreement will be sufficient to comply with your obligations hereunder, under applicable law or with third party rights.Given the global nature of the Internet, you agree to comply with all laws and rules where you reside or where you use RadTaker.RadTaker is operated world-wide and TaxTaker makes no representation that RadTaker is appropriate, lawful, or available for use in your location.TaxTaker does not offer RadTaker where prohibited by law.
6. Ownership of App & Third-Party Intellectual Property Rights
You understand and agree that TaxTaker is the owner, or licensee, of all rights in and to RadTaker and its associated content, including but not limited to all intellectual property and any other property or proprietary rights. RadTaker is protected by all applicable laws, intellectual property or otherwise, and you are expressly prohibited from using RadTaker for any purposes not explicitly stated in this Agreement.The foregoing prohibition on crawling and aggregation will not apply to search engines or non-commercial and publicly available archives that appropriately comply with the robots.txt file.
TaxTaker is the owner of all trademark, trade name, and/or service mark rights, whether registered or under common law, of all its marks, including, without limitation, TAXTAKER and RADTAKER.
TaxTaker respects the intellectual property rights of others and is committed to helping third parties protect their rights. Users are prohibited from posting content that violates another party's intellectual property rights. Unless otherwise stated, RadTaker and all content within this site are the property of TaxTaker and are protected by copyright and other intellectual property laws.
7. Limited License Grant
RadTaker and related materials, including but not limited to any text, names, marks, statistics, graphics, forms, photos, images, sounds, music, videos, software, scripts and interactive features, as well as its associated data and services generated by us, is the property of, owned by and licensed through TaxTaker. TaxTaker grants you a limited, non-exclusive, royalty free, non-sublicensable, non-transferrable, and non-assignable license to install and use one copy of RadTaker in executable object code form to be used on a single mobile phone (i.e. iPhone, Galaxy) or portable device (i.e. iPad, Android Tablets) for non-commercial, personal purposes.
You are hereby prohibited from using the trademarks, service marks, design marks, and logos of TaxTaker, or any colorable imitation thereof, or any mark not owned or licensed by you, including, without limitation the terms TAXTAKER, RADTAKER, or the logos related thereto, as an indicator of source, as a part of a domain name, or in any way that is likely to cause confusion without the prior written consent of TaxTaker. RadTaker is subject to all intellectual property laws, including but not limited to trademark, copyright, patent and other privacy and proprietary laws. All trademarks, images, copyrights or rights of publicity displayed in connection with your use of RadTaker are the property of their respective owners.
You are prohibited from using RadTaker for any use not explicitly stated in this Agreement, absent separate written agreement signed by TaxTaker and you pursuant to a binding agreement.
8. Terms and Conditions of Third Parties
User’s use of Third-Party Supported Platforms and other third parties via third-party websites, platforms, or applications, is governed solely by the terms and conditions of such third-parties, and any contract entered into, or any transaction completed via any third-party, is between you and the relevant third-party, and not TaxTaker.You agree to comply with all terms and conditions of any third party whose software or services are used in conjunction with RadTaker, including but not limited to any vendor which provides access and download services (i.e. iTunes, Google Play), any network provider (i.e. AT&T, Verizon), any service provider (i.e. PayPal), any platform provider (i.e. iOS, Android), or any hardware manufacturer (i.e. Apple iPhone, Samsung Galaxy, Blackberry, etc.).TaxTaker makes no representation and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party or contract entered into and any transactions completed by User with any such third-party.
9. No Endorsement of Any Product or Service
TaxTaker may allow advertisers to display advertisements within our App.However, TaxTaker does not endorse or recommend any commercial product, process or service.The views and opinions of users, contributors, and others expressed on RadTaker, including, without limitation, as the rating system, do not necessarily state or reflect those of TaxTaker and are not intended to be used for advertising or product endorsement purposes.TaxTaker reserves the right, within its sole and absolute discretion, to remove, or prohibit the display of, any information for any or no reason.
10. Section 230 of Communications Decency Act
You acknowledge and agree that TaxTaker via RadTaker is an interactive computer service provider under Section 230 of the Communications Decency Act. Though TaxTaker may edit, remove, or control the content displayed through RadTaker and provided to aid in the operation of its App, you agree that TaxTaker and/or RadTaker will not be considered an information content provider and will not be held liable for the republication of defamatory or tortious content created by third parties, whether through the or otherwise. TaxTaker may, within its sole and absolute discretion, remove any User Generated Content for any reason and for no reason at all.
11. COPPA Compliance
RadTaker is not directed to persons under the age of eighteen (18) and TaxTaker will not knowingly collect personally identifiable information from children under the age of eighteen (13) absent the requirements set forth in this Agreement. If TaxTaker inadvertently collects personally identifiable information, TaxTaker will delete the personally identifiable information in accordance with its security protocols, upon notice.
12. Disclaimer and Limitation of Liability
IRS CIRCULAR 230 NOTICE: TO ENSURE COMPLIANCE WITH REQUIREMENTS IMPOSED BY THE IRS, WE INFORM YOU THAT ANY U.S. TAX ADVICE CONTAINED IN THIS COMMUNICATION (INCLUDING ANY ATTACHMENTS) IS NOT INTENDED OR WRITTEN TO BE USED, AND CANNOT BE USED, FOR THE PURPOSE OF (I) AVOIDING PENALTIES UNDER THE INTERNAL REVENUE CODE OR (II) PROMOTING, MARKETING, OR RECOMMENDING TO ANOTHER PARTY ANY TRANSACTION OR MATTER ADDRESSED HEREIN.
You acknowledge and agree that the content contained within RadTaker will not be considered a representation to reasonably be relied upon and nothing within RadTaker will be construed to create a duty of care in TaxTaker or a warranty of any kind. You acknowledge and agree that TaxTaker takes no responsibility for, is not obligated to monitor and cannot be held liable for all the information contained within RadTaker as provided by you, third parties, information or Apps linked to or through RadTaker, information sent to TaxTaker by third parties and information intercepted by third parties. You agree to hold TaxTaker harmless for any and all inaccuracies, omissions, errors, loss of data, corruption of data, failure of hardware, failure of RadTaker, or misuse of RadTaker.
TAXTAKER PROVIDES RADTAKER ON AN AS-IS BASIS AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ACCURACY. YOU ACKNOWLEDGE AND AGREE THAT YOU USE RADTAKER AT YOUR OWN RISK AND THAT TAXTAKER WILL NOT BE HELD LIABLE FOR ANY DEFECTS, ERRORS, OMISSIONS, BUGS, OR DOWNTIME. ANY ATTEMPT BY TAXTAKER TO MODIFY RADTAKER WILL NOT BE DEEMED TO BE A WAIVER OF THIS LIMITATION OF LIABILITY. TAXTAKER WILL NOT BE HELD LIABLE FOR ANY CONTENT CONTAINED WITHIN RADTAKER, ANY THIRD PARTY LINKS OR ADVERTISING ACCESSIBLE THROUGH RADTAKER, OR ANY PRODUCT LISTED OR PURCHASED THROUGH RADTAKER.
IN THE EVENT OF A FAILURE OF RADTAKER TO CONFIRM WITH ANY APPLICABLE WARRANTY, YOU MAY NOTIFY APPLE OR GOOGLE, AND APPLE OR GOOGLE WILL REFUND THE PURCHASED PRICE FOR RADTAKER.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APPLE OR GOOGLE WILL HAVE NO OTHER WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO RADTAKER.
TAXTAKER WILL NOT BE HELD LIABLE FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION CONSEQUENTIAL DAMAGES, INCIDENTAL DAMAGES, PUNITIVE DAMAGES, SPECIAL DAMAGES, EXEMPLARY DAMAGES, INDIRECT DAMAGES, LOST PROFITS, LOST SAVINGS, BUSINESS INTERRUPTION, OR LOST INFORMATION ARISING OUT OF THE USE, WHETHER PROPER OR IMPROPER, OF RADTAKER OR RESULTING INACCURATE R&D TAX CREDIT ESTIMATE OR TAX FORM PREPARATION FROM YOUR USE THEREOF, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TAXTAKER DOES NOT ASSUME RESPONSIBILITY FOR ANY ERROR IN, OMISSION OF, INTERRUPTION OF, DELETION OF, DEFECT IN, DESTRUCTION OF, UNAUTHORIZED ACCESS TO, OR ALTERATION OF ANY DATA. YOU BEAR THE SOLE RESPONSIBILITY TO PROTECT AND BACKUP YOUR OWN DATA, NETWORK, HARDWARE, SYSTEMS, SERVERS, SOFTWARE, COMPUTERS, PHONES, AND SECURITY.
TAXTAKER IS NOT PROVIDING, NOR DOES RADTAKER CONSTITUTE, TAX ADVICE, BUT RATHER RADTAKER IS A SERVICE TO COMPUTE ESTIMATED R&D TAX CREDITS BASED UPON INFORMATION AND DATA PROVIDED BY YOU AND AID IN YOUR SUBMISSION OF NECESSARY IRS TAX FORMS.IN THE EVENT OF AN IRS AUDIT, YOU ARE SOLELY RESPONSIBLE AND TAXTAKER IS NOT LIABLE FOR ANY DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY PENALTIES, RELATED THERETO.
UNDER ANY CIRCUMSTANCES, YOU ACKNOWLEDGE AND AGREE THAT TAXTAKER’S MAXIMUM LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT THAT YOU PAID FOR YOUR USE OF RADTAKER. THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS LISTED IN THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
You agree to indemnify, hold harmless, and defend TaxTaker, its officers, members, employees, agents, and directors from and against any and all claims, demands, causes of action, debts, liabilities, damages, costs, or expenses, including costs and reasonable attorneys’ fees, arising out of or in relation to your use of RadTaker, your violation of a term or provision of this Agreement, or your violation of the rights of a third party. You agree that your obligation to hold harmless, defend, and indemnify TaxTaker will survive the termination or failure of this Agreement and your use of RadTaker. You acknowledge and agree that your obligation to defend TaxTaker will not provide you with the right to control TaxTaker’s defense and you expressly agree that TaxTaker has the right to direct and control its defense regardless of your obligation to defend TaxTaker.
You are expressly prohibited from assigning your rights or obligations under this Agreement without TaxTaker’s prior written consent. TaxTaker may assign its rights or obligations under this Agreement at any time, including but not limited to in a sale of the TaxTaker business or in a sale of RadTaker.
16. Governing Law, Jurisdiction, and Venue
This Agreement and each of the documents contemplated by or delivered under or in connection with this Agreement are governed exclusively by, and will be enforced, construed, and interpreted exclusively in accordance with, the laws applicable in the State of Texas.Each of the parties irrevocably consents to the exclusive personal jurisdiction of the federal and state courts located in Travis County, Texas, as applicable, for any matter arising out of or relating to this Agreement, except that in actions seeking to enforce any order or any judgment of such federal or state courts located in Travis County, Texas, such personal jurisdiction shall be nonexclusive.
17. Binding Arbitration
To the fullest extent permitted by law, all disputes, controversy, or claim arising out of or relating to this Agreement, its enforcement or interpretation, or because of an alleged breach, default, or misrepresentation in connection with any of its provisions, shall be submitted to final and binding arbitration before the American Arbitration Association ("AAA") in Travis County, Texas in accordance with the AAA Rules for Commercial Arbitrations (“AAA Rules”).The arbitrator shall be selected by mutual agreement of the parties; if none, then by striking from a list provided by AAA and subject to the AAA Rules.Arbitration shall result in a written decision setting forth the essential findings and conclusions, which shall be final and binding upon the parties and shall be the exclusive remedy for all Arbitrable claims.The arbitrator shall have only such authority to award equitable relief, damages, costs, and fees as a court would have for the particular claim(s) asserted.The party prevailing in any such arbitration shall be entitled, in addition to all other relief, to reasonable attorneys' fees relating to such arbitration.The non-prevailing party shall be responsible for all costs of the arbitration, including but not limited to, the arbitration fees, court reporter fees, etc.
THIS CLAUSE WILL NOT PRECLUDE THE PARTIES FROM SEEKING PROVISIONAL REMEDIES (WITH RESPECT TO ALL MATTERS OF SUBSTANTIVE LAW) IN RENDERING AN AWARD.ANY SUCH PROVISIONAL REMEDY SOUGHT WILL BE EXCLUSIVELY SOUGHT IN AND DECIDED BY A COURT OF COMPETENT JURISDICTION LOCATED IN TRAVIS COUNTY, TEXAS OR THE FEDERAL DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS.
18. Additional Provisions
No waiver of rights under this Agreement by either party will be recognized unless made in writing and signed by the party to be charged. This Agreement is solely between TaxTaker and you and will not confer any rights or remedies upon any third party, including third party beneficiaries. A finding that any term or provision of this Agreement is invalid or unenforceable will not affect the validity or enforceability of this Agreement. Any term or provision of this Agreement that is found to be invalid or unenforceable will be reformed to the extent necessary to make it valid and enforceable.
YOU AND TAXTAKER AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES PROVIDED UNDER THIS AGREEMENT MUST COMMENCE WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUED. FAILURE TO ASSERT SAID CAUSE OF ACTION WITHIN ONE YEAR WILL PERMANENTLY BAR ANY AND ALL RELIEF.
YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST TAXTAKER ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
This Agreement remains in full force and effect, unless stated otherwise elsewhere in this Agreement, as long as you use RadTaker.Notwithstanding the above, TaxTaker may, with or without notice, delete any data submitted by you, suspend a user’s account privileges, or delete a user account.
20. Notice to California Users
Under California Civil Code Section 1789.3, users of RadTaker from California are entitled to the following specific consumer rights notice to The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs, which may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
Any notice under this Agreement or other contact must be sent via certified mail to:
112 E. 7th St.
Austin, Texas 78701
With a copy via email to: firstname.lastname@example.org
This Agreement is enforced by the Internet Lawyers of Traverse Legal, PLC.
© 2019 TaxTaker, Inc.