DEDUCTR LICENSE POLICY
1.1 Deductr (herein “DDR”) is the developer and owner of web-based and mobile applications designed to help small and independent business owners maximize their eligible tax deductions and protect themselves in the event of an audit by automatically tracking expense, mileage, and time – providing single-click access to everything necessary to meet with a CPA.
1.2 DDR shall make the Service available to Subscribers who are Customers of LICENSEE, and LICENSEE will include the Service in all offerings to its Customers on the terms set forth in the Agreement.
As used in the Agreement, the following terms shall have the meanings indicated:
2.1 “Party” shall mean either LICENSEE or DDR; “Parties” shall mean both LICENSEE and DDR.
2.2 “Service” means DDR’s Deductr™ software.
2.3 “Subscriber” shall mean a Customer who has been provided the Service from the offering through LICENSEE.
2.4 “Active Count” shall mean the total number of Service accounts activated through LICENSEE showing all Subscribers as of the last day of a calendar month.
2.5 All references to “days” or time periods that attach to any rights or obligations herein means calendar days, and not business days, and includes weekends and holidays.
3.1 DDR grants to LICENSEE, for the term of the Agreement, a nonexclusive, nontransferable, worldwide license to offer and license the Service to Subscribers. Each Subscriber shall be granted an individual license to access and use the Service and shall be required to agree to the terms of subscription to the Service before being given a user license. DDR shall grant a user license to all Subscribers who have clicked through the User Agreement. LICENSEE shall be granted all rights and permissions to promote the Service, including use of name, logo, and trademarks in advertising, promotional materials, and business publications in accordance with the terms outlined in Section 6 of the Agreement.
4. THE SERVICE
4.1 DDR shall make the service available to each LICENSEE account holder. LICENSEE shall provide the Service automatically to each account holder and will make each account holder aware that the Service has been provided to them. DDR shall make all final determinations regarding the features, the attributes, and functionality of the Service, which shall include the ability for Subscribers to be able to link their account of the Service to their financial institutions via the aggregation services provided as part of the Service. Subscribers shall also be provided with the ability to choose, via their acknowledgement, that they desire to have their financial information entered and collected in the Service to be shared with the tools provided by LICENSEE. DDR shall have the right at any time and from time to time, in its sole discretion, to modify the Service, including, but not limited to, the capabilities, features, and other characteristics of any software upon which the Service is based.
4.2 DDR shall provide the Service to all Subscribers who subscribe in accordance with the terms of the Agreement. DDR shall have the right to specify all terms applicable to the Service in its sole discretion. DDR shall have the right to terminate or modify the subscription of any Subscriber who violates the Terms of Service they agree to upon signup. Notwithstanding any other provision of the Agreement, DDR shall have no obligation or liability of any kind to LICENSEE arising out of, or relating to the terms of, any Subscriber’s subscription, or any breach thereof, other than to disclose such breach.
4.3 Except as otherwise provided herein LICENSEE acknowledges and agrees that it accepts the Service in “as is” condition and on an “as available” basis and that DDR offers no representations or warranties regarding the completeness, operation, functions, usefulness, compatibility of the Service or any part thereof. DDR shall not be responsible for any third party software, products, or services that are not provided by DDR to LICENSEE or its customers. The failure of third party software or services to perform or meet LICENSEE’s requirements or needs shall not affect LICENSEE’s obligation to DDR under the Agreement, including LICENSEE’s payment obligations.
4.4 LICENSEE acknowledges that all intellectual property rights in and relating to the Service, including without limitation, any patents, copyrights, and trade secrets, whether developed prior to or after the date of the Agreement, are and shall remain the property of DDR.
4.5 DDR warrants that to the best of the its knowledge: (i) it has the right to enter into the Agreement and to grant to LICENSEE the rights granted hereunder; (ii) it has the right to offer the Service to Subscribers; and (iii) the Service will not infringe upon the valid intellectual property rights of any third party. EXCEPT AS PROVIDED IN THE PRECEDING SENTENCE, ALL WARRANTIES (INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE) AND REPRESENTATIONS EXPRESSED OR IMPLIED BY STATUTE, COMMON LAW, OR OTHERWISE ARE EXCLUDED. DDR MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND REGARDING THE FUNCTIONALITY OR PERFORMANCE OF THE SERVICE OR ANY UNDERLYING SOFTWARE.
4.6 The Service is an aid in documenting and recording expenses and tracking mileage for Subscribers that can be used to help them calculate their taxes. THE TAX LAWS OF THE UNITED STATES AND OTHER TERRITORIES ARE VERY COMPLEX AND SAMPLES LISTED AND EXAMPLES USED FOR ILLUSTRATION PURPOSES MAY NOT PROPERLY REFLECT SUBSCRIBERS SPECIFIC TAX SITUATION. THE SERVICE IS NOT INTENDED TO BE TAX ADVICE. IT IS PROVIDED MERELY TO ILLUSTRATE POTENTIAL TAX DEDUCTIONS AND POSSIBLE TAX CONSIDERATIONS THAT MAY RELATE TO A SUBSCRIBER’S BUSINESS. WE STRONGLY ENCOURAGE SUBSCRIBERS TO CONSULT THEIR OWN TAX ADVISORS TO DETERMINE ANY IMPACT A SPECIFIC TAX DEDUCTION MAY HAVE.
5. PROMOTION OF THE SERVICE
5.1 DDR hereby authorizes LICENSEE to promote the Service and its benefits to potential LICENSEE Customers, subject to the terms and conditions of the Service as the same may be modified from time to time.
5.2 It is in the best interest of the Parties to maximize the utilization of the Service by Subscribers. DDR shall provide marketing implementation support services to assist LICENSEE in those areas that are unique to marketing the Service and ensuring a high utilization of the Service after any subscription has been initiated. LICENSEE shall actively promote the benefits of using the Service to Subscribers. All promotional communications shall include only such information about the Service as approved by DDR. LICENSEE shall indemnify DDR and hold DDR harmless from any and all claims attributable, in whole or in part, to LICENSEE’s failure to accurately communicate information regarding the Service.
5.3 DDR has promotional features built into the Service, most of which automatically go out to Subscribers or are included as part of the application. These include, but are not limited to: a welcome letter; a welcome call; email campaigns; newsletters; automatic prompts using email; mobile apps and MMS text messages; upgrades of the Service and/or upgrades related to the Service; internal communications from customer support; outbound phone calls from customer support to respond to technical questions, provide other services, and solve technical servicing issues; and to gather statistical data regarding overall customer experience and use of the Service. Some of these services and products may be provided by third parties. Such automatic emails have “opt out” features built in which give Subscribers the option of not receiving additional promotional material from the Service. The selection of such features shall not affect LICENSEE’s ability to promote its products and services directly to Subscribers.
5.4 Both Parties shall at all times conduct its business in a manner that reflects favorably on the Service and upon the other Party’s good name, goodwill, and reputation. LICENSEE shall represent the Service fairly and shall not make any false or misleading representations regarding the Service that are inconsistent with DDR’s product literature, warranties, or documentation. Both Parties shall not engage in any illegal, deceptive, misleading, or unethical practices as they relate to the Service.
5.5 DDR acknowledges that LICENSEE is the sole owner of its customer database and that DDR shall not access such for any purpose other than to fulfill its rights, duties and obligations under the terms of the Agreement.
6. CUSTOMER SERVICE AND TECHNICAL SUPPORT
6.1 LICENSEE shall provide all general and basic customer support to Subscribers of the Service with regard to how the Service relates to or is a part of the tools provided by LICENSEE, specifically first response customer support related to linking financial institutions.
6.2 DDR shall provide escalation support to LICENSEE employees for issues regarding linking financial institutions, and shall provide customer and technical support for Subscribers regarding the Service, including login information and passwords, training, and use of the Service by answering general customer service questions in a timely manner through online chat, email and/or telephone where appropriate. Currently, live customer service is available between the hours of 9am to 5pm Mountain Standard Time Zone, Monday through Friday, except on US national holidays.
6.3 DDR shall use commercially reasonable means to resolve any functional deficiencies in the Service. Additionally, DDR shall provide platform wide enhancements, patches and bug fixes to Subscribers at no additional cost at its own discretion.
7. CONFIDENTIAL INFORMATION
7.1 The Parties agree that all information which is provided or made available directly or indirectly to either Party pursuant to the Agreement, including Subscriber information, is confidential, including, but not limited to, drawings, designs, architecture, object codes, source codes, computer program listings, techniques, algorithms and processes, technical, marketing, financial information, and contact information including phone numbers, mailings, and email addresses (collectively “Confidential Information”). All Confidential Information shall be treated strictly confidential by each Party, its employees, agents, and representatives, and shall not be disclosed by a Party to any third party, entity, or person, except to fulfill the obligations of Section 6.3. However, all such employees, agents, or representatives that are necessary for the Party to perform its obligations, duties and responsibilities under the Agreement are subject to the same confidentiality restrictions as contained herein. Each Party shall be liable for any breaches by its respective employees, agents, or representatives.
7.2 Information shall not be considered to be Confidential Information if it: (1) is already or otherwise becomes publicly known through no act of the receiving Party; (2) is lawfully received from third parties subject to no restriction of confidentiality; or (3) can be shown by the receiving Party to have been independently developed by it prior to such disclosure.
7.3 Throughout the term of the Agreement, LICENSEE agrees to the following regarding DDR’s software: (1) not to reverse engineer, decompile, disassemble, or attempt to discover the source code or architecture directly or through any third party, or translate it into another software language or code; (2) not to develop, create, assist, or pay any third person or entity to develop or create any program substantially similar in purpose or function to the software or that would compete with the software in any material way; and (3) not to encourage, facilitate, assist, or pay any third party to do anything that a LICENSEE would be precluded from doing under the provisions of Section 7 of the Agreement.
8. OWNERSHIP OF SOFTWARE AND TRADEMARKS
8.1 Each Party shall retain all rights of ownership in its respective software programs, trade names, trademarks, patents, copyrights, and all other proprietary and confidential materials. DDR shall retain all ownership in the Service, and LICENSEE shall retain all ownership in its offering. Nothing in the Agreement is intended to transfer, assign, give or sell any ownership interest to any software programs, proprietary or confidential materials between the Parties. The Agreement only gives each Party the restricted license to use such proprietary and confidential materials in the marketing of the Service, provided that in such marketing DDR is referenced as the owner of the trade name and/or trademark thereof.
8.2 The Service contains and is comprised of DDR’s trade secrets, trademarks, trade names, proprietary materials and confidential information. LICENSEE agrees to keep confidential all such materials and information, and agrees not to sell, transfer, give, or assign such materials and information to any other person or entity without the express written permission of DDR.
8.3 LICENSEE agrees to use the trademark, and copyright notices of the Service and any documentation in connection with its advertisement and distribution thereof. Trademark, trade name, and copyright notices which, are provided to LICENSEE by DDR, shall be as determined by DDR. DDR retains the right to specify the reasonable quality and standards of all materials on which a DDR trademark or trade name is used. In the event of a material failure by LICENSEE to adhere to such standards of quality, such failure shall be grounds for DDR to terminate LICENSEE’s right to the use of such trademark or trade name.
8.4 LICENSEE shall not sell, lease, lend, copy, transfer, assign, or otherwise distribute the Service except as expressly authorized in the Agreement.
9. HOSTING, DATA BACKUP AND SECURITY
9.1 DDR shall host and maintain the Service program, including providing commercially reasonable data back up and security systems to ensure that Subscriber data is not lost, stolen, or compromised.
10. COVENANTS AND WARRANTIES OF DDR
10.1 DDR warrants that: (a) it is the owner of the Service, including all intellectual property rights in it under copyright, patent, trademark, trade secret, and other applicable law; (b) The Service does not infringe or otherwise violate any known copyright, patent, or trade secret of any third party; and (c) as of the date of the Agreement DDR has not received notice of any claim from a third party that the Service infringes intellectual property rights of any third party.
10.2 Should the Service become, or be likely to become, in DDR’s opinion, the subject of a third-party claim of infringement of copyright, trademark, patent, etc., DDR may procure for LICENSEE the right to continue using the Service, or replace or modify it to make it non-infringing and functionally equivalent.
10.3 DDR, at its sole cost and expense and judgment shall: (a) keep and maintain the Service in good and functioning working order, resolving software bugs and errors in its operation in a reasonable manner and time frame, and making such customization on DDR’s website as is necessary for the Service to properly function; (b) shall provide the Service in a web based format usable on both PC and Apple/Mac computers; and (c) shall periodically update the Service in order to comply with significant changes in the U.S. Internal Revenue Code.
10.4 If LICENSEE finds a deficiency in the Service, which materially affects performance, and provides DDR with a written report, DDR shall use reasonable efforts to correct, at no cost to LICENSEE, any such errors or failures. DDR’s warranty and obligation is solely for the benefit of LICENSEE, which has no authority to extend this warranty to any other person or entity. DDR MAKES NO WARRANTY THAT ALL ERRORS OR FAILURES WILL BE CORRECTED.
11. INDEMNIFICATION AND LIMITS ON LIABILITY
11.1 Each Party shall defend the other Party for any action brought in part or in whole against the other Party resulting from infringement of trademarks, the negligence, misrepresentation, action, inaction, or other fault of the offending Party. The offending Party shall also pay resulting costs, damages, and legal fees finally awarded against the other Party. Each Party agrees to notify the other Party promptly in writing of any such claim or action. The indemnifying Party shall also be promptly given sole control of the defense of any such claim and all related settlement negotiations.
11.2 For the Service, all warranties (including but not limited to the implied warranties of merchantability and fitness for a particular purpose) and representations expressed or implied by statute, common law, or otherwise are excluded.
11.3 In no event shall DDR be liable for any loss of profits, loss of business, loss of use, interruption of business, or for indirect, special, incidental or consequential damage or injury, direct or indirect, of any kind, whether alleged under the Agreement or otherwise. In no case will DDR be liable for any representation or warranty made to any third party by LICENSEE, any agent for LICENSEE, or any Subscriber or other person or entity in LICENSEE’s distribution chain.
11.4 Notwithstanding anything in the Agreement to the contrary, the entire liability of DDR to LICENSEE for damages concerning performance or nonperformance by DDR or in any way related to the subject matter of the Agreement, and regardless of whether the claim for such damages is based in contract or in tort, shall not exceed the amount of net payments made for the proceeding six (6) month period under the Agreement by LICENSEE to DDR.
12. TERMINATION FOR DEFAULT
12.1 Either Party may terminate the Agreement immediately, including all rights and licenses granted under the Agreement, if the other Party materially breaches the Agreement, and such breach is not cured within thirty (30) days after receipt of written notice of the breach. Provided, however, if any breach, other than the payment of money, cannot be cured within the thirty (30) days, then the party shall not be treated as in breach if it shall commence action to cure within a period of ten (10) days and shall diligently prosecute the same to completion.
12.2 Notwithstanding any other provision of the Agreement, the occurrence of any of the following events shall, at the option of the non-defaulting Party, constitute an event of material breach under the Agreement:
(a) if a petition or action shall be filed or taken by or against a Party under any law dealing with insolvency or bankruptcy,;
(b) if a Receiver is appointed over the assets or undertakings of a Party (or any part thereof);
(c) if a Party makes a general assignment for the benefit of creditors; and/or
(d) if a Party ceases to function as a going concern or an order is made or a resolution passed to that effect except for the purposes of amalgamation or reorganization. Each Party shall notify the other Party immediately on the occurrence of any of the foregoing events.
14. FORCE MAJEURE
14.1 Neither party to the Agreement shall be liable to the other for any loss, cost, or damages arising out of, or resulting from, any failure to perform in accordance with the terms of the
Agreement, where such failure is beyond the reasonable control of such Party, which, as used in the Agreement, shall be deemed to mean, but not be limited to, acts of God, strikes, lockouts, or other industrial disturbances, wars, whether declared or undeclared, blockades, insurrections, riots, governmental action, explosions, fire, floods, or any other cause not within the reasonable control of either Party.
15.1 Due to the nature of the Service and the financial information stored therein by Subscribers, Subscribers who are separated from access to the Service, either because this Agreement between BOA and LICENSEE is terminated or expired, or because Subscriber is no longer associated with LICENSEE, may have a need and/or desire to continue to have or regain access to the Service. Accordingly BOA retains the right only to extend offers directly to separated Subscribers enabling them to continue using the Service.
16. GOVERNING LAW AND VENUE
16.1 The Agreement shall be governed by and construed in accordance with the laws of the State of Utah. Each of the parties hereby specifically and irrevocably consents to the jurisdiction of the courts located in the state of Utah with respect to all matters relating to the Agreement and waives any objection it may have to the laying of venue in any such court.
17. DISPUTE RESOLUTION
17.1 Any dispute involving the Agreement or the obligations of either Party under the Agreement (“Dispute”) shall first be referred to mediation by senior executives designated for that purpose by the Parties. If those persons are unable to resolve the Dispute within 30 days, either Party may submit the Dispute to formal binding arbitration in accordance with the arbitration provisions below.
17.2 Arbitration shall be conducted by the American Arbitration Association, which shall administer the arbitration under its commercial rules (the “AAA Rules”). Arbitration shall be initiated by a written demand for arbitration that describes the controversy or claim in reasonable detail and specifies the relief requested. The arbitration shall be conducted by one arbitrator chosen in accordance with the AAA Rules (or three arbitrators for disputes involving more than $500,000) within thirty (30) days after receipt by the respondent of the demand to arbitrate. The arbitration, including the rendering of the award, shall take place in Salt Lake City, Utah, which shall be the exclusive forum for resolving Disputes. This arbitration provision is intended by the Parties to be self-executing. The arbitrator shall have sole jurisdiction to determine whether: (a) a claim is subject to arbitration; (b) the arbitration may proceed even if one of the Parties refuses to attend or participate; and (c) an award against that Party may be ordered pursuant to default or otherwise. The Parties agree that they will arbitrate all Disputes regardless of the existence of any related dispute, action or special proceeding between either of the Parties hereto and/or any third party. The arbitrator(s) shall render a written arbitration decision with the award, and the decision of the arbitrator(s) shall be final and binding upon the Parties. The Parties hereby waive any right of appeal under applicable law. Judgment upon the award rendered by the arbitrator(s) may be entered in any court of competent jurisdiction. The prevailing Party shall be entitled to recover its reasonable attorneys’ fees and its share of the costs, including any auditing costs or expenses of expert witnesses.
17.3 In the event of actual or threatened breach of the provisions of Section 10, above, the non-breaching Party shall have no adequate remedy at law and shall be entitled to immediate and injunctive or other equitable relief, without bond and without the necessity of showing actual money damages, and notwithstanding Sections 21.1 or 21.2 above, each Party shall have the right to institute judicial proceedings against the other Party or anyone acting by, through or under such other Party in order to seek such injunctive or other equitable relief. The prevailing Party in any such legal action for injunctive or equitable relief shall be entitled, in addition to any other rights and remedies it may have, to reimbursement for its expenses, including court costs and reasonable attorneys’ fees.
17.4 The validity, construction and enforceability of the Agreement shall be governed by and construed in accordance with the laws of the State of Utah.
18. EFFECT OF PARTIAL INVALIDITY
18.1 The invalidity of any part of the Agreement will not and shall not be deemed to affect the validity of any other part. In the event that any provision of the Agreement is held to be invalid, the parties agree that the remaining provisions shall be deemed to be in full force and effect as if they had been executed by both parties subsequent to the removal of the invalid provision.
19.1 The rights conferred on each party by the Agreement are personal and may not be transferred or assigned without the other party’s express written consent.
20. NO JOINT VENTURE OR AGENT
20.1 No agency, partnership, joint venture, or other joint relationship is created by the Agreement. Neither Party nor their employees or agents have any authority of any kind to bind the other Party in any respect whatsoever.
21. MODIFICATION OF AGREEMENT
21.1 Any modification of the Agreement or additional obligation assumed by either Party in connection with the Agreement shall be binding only if evidenced in writing signed by each Party or an authorized representative of each Party.
22. ENTIRE AGREEMENT
22.1 The Agreement shall constitute the entire agreement between the parties. Any prior understanding or representation of any kind preceding the date of the Agreement shall not be binding on either party except to the extent expressly set forth in the Agreement.
23.1 Any notices required or permitted under the Agreement shall be in writing and shall be deemed sufficiently given when sent by certified or registered mail if sent to DDR address below:
DEDUCTR, INC. 1442 E. 820 N. Orem, UT 84097