Baker Tilly End User License Agreement

1.1 The term, “Products,” as used herein, shall mean any software product, software as a service (“SaaS”) product, or data product, together with any libraries, utilities, tools, upgrades, updates, patches, modules, enhancements and other versions of the Products that replace or supplement the original Product, and any accompanying manuals, configurations or other documents, created by Baker Tilly and accessible by you, including but not limited to Making Tax Digital.

2.1 Your License to Use the Products. Subject to your compliance with this EULA and your payment of any applicable fees, we grant you a limited, non-exclusive, non-transferable, non-sublicensable, revocable, royalty-free, worldwide license to, to the extent applicable, install, access and use the Products for your internal business purposes. This license shall be valid for the term set forth in the Master Services Agreement (“MSA”) or Order Form signed between you and Baker Tilly. If no license term is set forth in any ordering document, this license shall continue for a term of one (1) year.

3.1. Compliance. You agree to comply with (a) all documentation, instructions, manuals and restrictions made available to you in connection with the Products; (b) the terms and conditions of this EULA, (c) and all applicable local, state, national and international laws and regulations (“Applicable Laws”) in your use of the Products.

3.2. Restrictions. In connection with your use of the Products, you are prohibited from: (a) violating any applicable laws; (b) introducing any virus, trojan horse, or other damaging source code into the Products; (c) reverse engineer, disassemble or decompile the Products or otherwise derive the source code of any Product; (d) process, transmit or introduce any content that infringes the intellectual property rights of a third party; (e) modify, customize, or otherwise alter the source code or configuration of the Products; (f) transfer, sell, re-sell, loan, or otherwise distribute, sublicense or assign your rights in the Products to any third party; (g) remove or modify any copyright, patent, trademark or other notices on any Product; or (h) use the Products in any way that is not expressly granted by the license granted to you in Section 2 of this EULA.

3.3. Records. You will maintain complete and accurate records related to your use of the Products as necessary to verify your compliance with the terms of this EULA. Upon Baker Tilly’s request or reasonable belief that you have violated the terms of this EULA, Baker Tilly shall have the right to examine and audit your books and records relating to your use of the Products as necessary to confirm your compliance with this EULA.

3.4. Authorized Users. To the extent applicable, you will be provided with the number of profiles set forth in the applicable Order Form. Each profile will be unique and limited to one user (the “Authorized User”). You acknowledge and agree that the use of one unique profile by more than one user is expressly prohibited by this EULA. Should Baker Tilly discover more than one user is accessing the same profile, you agree that Baker Tilly may impose additional fees for such unauthorized use.

4.1. Product Ownership. The Products are the sole property of Baker Tilly and you receive no ownership interest in such Products through your use of the Products, other than the limited license granted to you in this EULA. You agree that title to the Products and all associated copyright, patent, trademark and other intellectual property rights in and to the Products are held exclusively by Baker Tilly. You do not acquire any intellectual property rights in the Products through your access or use of the Products.

4.2. Feedback. At your discretion, you may provide Baker Tilly with suggestions or feedback for issues, customizations, enhancements or operation of the Products. Such feedback shall be the property of Baker Tilly and Baker Tilly has the right to utilize such feedback in its development or modification of the Products without compensation to you.

4.3. Third Party Software. The Products may include software developed, owned or provided by third parties or their licensors (the “Third Party Software”). Your use of any Third Party Software is governed by separate licenses and/or terms provided to you by such third party or set forth in the contract between you and Baker Tilly. You agree to comply with any terms and conditions set forth in any applicable Third Party Software licenses. The Third Party Software shall remain the property of such third party and you obtain no right, title or interest to such Third Party software beyond the limited license granted to you by the applicable third party.

4.4. Upgrades. Baker Tilly shall have the right to update, upgrade, improve, or otherwise modify the Products at any time and for any reason. You agree to provide Baker Tilly with any necessary access to complete such upgrades and agree that Baker Tilly will have no obligation to continue hosting or provide support on outdated versions of the Product.

4.5. TERM AND TERMINATION. This EULA begins on the date you first access the applicable Product and shall continue in effect for the duration of the subscription period set forth in the Order Form or applicable ordering document between you and Baker Tilly or between you and an Authorized Reseller. If no subscription period is set forth in an ordering document, this EULA will continue for the duration of your use of the Product. This EULA may be terminated by Baker Tilly if (a) you breach the terms of this EULA or other contract between you and Baker Tilly and you fail to cure the breach within ten (10) days of Baker Tilly providing notice of such breach, (b) you fail to pay any fees due to Baker Tilly, (c) you fail to implement any required updates or security patches to the Product(s) after receiving notice from Baker Tilly, (d) should Baker Tilly cease providing this Product offering (e) or for any legal, regulatory or compliance purposes. Upon termination, for any reason, you agree to immediately cease all use and access to the Product(s), remove the Product(s) from all computers and servers on which such Product(s) are installed, and, upon Baker Tilly’s request, certify such destruction in writing to Baker Tilly. Baker Tilly is not responsible for updating the Products or managing your use of the Products after any such termination.

5.1. Your Warranties. You represent and warrant that (a) you have the authority to enter into and perform your obligations under this EULA, (b) you have read these terms and agree to abide by your obligations herein, (c) your use of the Product(s) will not infringe the intellectual property rights of any third party, and (d) you have the authority and any necessary consents to upload Uploaded Data into the Product(s).

5.2. Baker Tilly’s Warranties. Baker Tilly represents and warrants that the Product(s) do not infringe the intellectual property rights of any third party. This warranty does not cover damages, defects, malfunctions or failures caused by any unauthorized modification of the Product(s) by you or any third party, any negligence in your use of the Product(s), any failure to follow operator instructions provided to you by Baker Tilly, any failure to install updates required by Baker Tilly. To the extent this warranty is breached, your sole remedy is for Baker Tilly to refund any fees for pre-paid subscription periods.

5.3. Disclaimers. Baker Tilly makes no representations or warranties as to the accuracy, completeness, validity, or applicability of information provided. Baker Tilly’s provision of the information contained herein is not and cannot be considered legal advice. You must consult your attorneys with respect to any matters or items that require legal interpretation or to determine what additional policies, procedures or requirements under federal, state or other type of law or regulation apply to you. Except for the express warranty granted in Section 6.2, the Product(s) are provided to you “as-is” without warranty of any kind, express or implied, including any implied warranties of merchantability, accuracy, title or fitness for a particular purpose, that the Product(s) are error-free, secure or free from any viruses or other harmful components. The information contained within the Product is provided as a reference and is not a complete list or exhaustive compilation of all relevant information. 

6.1. Indemnification by You. You will indemnify Baker Tilly, its subsidiaries and their present or former partners, principals, employees, officers and agents against all costs, fees, expenses, damages and liabilities (including attorneys’ fees and all defense costs) associated with any third-party claim, relating to or arising as a result of (a) your download, installation or use of the Product(s), including in any combination with the products or software of a third party, (b) your unauthorized use of the Product(s), (c) your breach of this EULA or violation of applicable laws, and (d) your negligence.

6.2. Indemnification by Baker Tilly. Subject to Section 7.4, we will indemnify and defend you, and your employees (to the extent applicable), from and against any third-party claim to the extent such third party claim is finally determined to arise from Baker Tilly’s Product(s) infringing the intellectual property rights of such third party. Baker Tilly shall have no obligations to defend you from claims if the infringement arises from your combination of the Product(s) with any other product, software, service, data, or content. Further, Baker Tilly will have no obligation or liability arising from your or any third party’s use of the Product(s) other than for such Product(s) intended use.

6.3. Infringement Indemnity Process. In the event Baker Tilly is obligated to defend and indemnify you under Section 7.2, Baker Tilly will, at its option, either (a) obtain the rights for you to use the portion of the Product(s) which is alleged to be infringing, (b) modify the alleged infringing Product(s) or portion of such Product(s) so that it is no longer infringing, (c) replace the alleged infringing Product(s) or portion of such Product(s) with a non-infringing alternate Product, or (d) provide you with a refund for any fees paid for the duration that the Product(s) was determined to be infringing.

6.4. LIMITATION OF LIABILITY. THE LIABILITY (INCLUDING ATTORNEY’S FEES AND ALL OTHER COSTS) OF BAKER TILLY AND ITS PRESENT OR FORMER PARTNERS, PRINCIPALS, AGENTS OR EMPLOYEES RELATED TO ANY CLAIM FOR DAMAGES RELATING TO THE PRODUCT(S) PROVIDED UNDER THIS EULA SHALL NOT EXCEED THE AGGREGATE AMOUNT OF FEES YOU PAID FOR THE PRODUCT(S) IN THE PREVIOUS TWELVE (12) MONTHS. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY TO THE FULL EXTENT ALLOWED BY LAW, REGARDLESS OF THE GROUNDS OR NATURE OF ANY CLAIM ASSERTED, INCLUDING THE NEGLIGENCE OF EITHER PARTY. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS, LOST BUSINESS OPPORTUNITY, LOST DATA, CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES, DELAYS, INTERRUPTIONS, OR VIRUSES ARISING OUT OF OR RELATED TO THIS AGREEMENT.

FURTHER BAKER TILLY SHALL HAVE NO LIABILITY FOR: (A) YOUR OR A THIRD PARTY’S MODIFICATIONS TO THE PRODUCT(S); OR (B) THIRD PARTY RELIANCE ON THE DATA OUTPUTS OF ANY BAKER TILLY PRODUCT(S).

6.5. Timeframe to Bring Claims. Any legal proceedings arising from or in conjunction with the Product(s) provided under this EULA must be commenced within twelve (12) months after the action occurs for which the claim is brought, without consideration as to the time of discovery of any claim or any other statutes of limitations or repose.

7.1. Compliance with Data Privacy Law. To the extent your use of the Product(s) requires Baker Tilly to receive personal data or personal information from you, Baker Tilly may process, and engage subcontractors to assist with processing, any personal data or personal information, as those terms are defined in applicable privacy laws. Baker Tilly’s processing shall be in accordance with the requirements of the applicable privacy laws relevant to the processing in providing the Product(s) hereunder, including services performed to meet the business purposes of the Client, such as Baker Tilly’s tax, advisory, and other consulting services (such services will be subject to a separate agreement). Applicable privacy laws may include any local, state, federal or international laws, standards, guidelines, policies or regulations governing the collection, use, disclosure, sharing or other processing of personal data or personal information with which Baker Tilly or its clients must comply. Such privacy laws may include (i) the EU General Data Protection Regulation 2016/679 or the UK General Data Protection Regulation (together, the “GDPR”); (ii) the California Consumer Privacy Act of 2018 (CCPA); and/or (iii) other laws regulating marketing communications, requiring security breach notification, imposing minimum security requirements, requiring the secure disposal of records, and other similar requirements applicable to the processing of personal data or personal information. Baker Tilly is acting as a Service Provider/Data Processor, as those terms are defined respectively under the CCPA/GDPR, in relation to your personal data and personal information. As a Service Provider/Data Processor processing personal data or personal information on behalf of you, Baker Tilly shall, unless otherwise permitted by applicable privacy law, (a) follow your instructions; (b) not sell personal data or personal information collected from you or share the personal data or personal information for purposes of targeted advertising; (c) process personal data or personal information solely for purposes related to your engagement and not for Baker Tilly’s own commercial purposes; and (d) cooperate with and provide reasonable assistance to you to ensure compliance with applicable privacy laws. You are responsible for notifying Baker Tilly of any applicable privacy laws the personal data or personal information provided to Baker Tilly is subject to, and you represent and warrant you have all necessary authority (including any legally required consent from individuals) to transfer such information and authorize Baker Tilly to process such information in connection with the Product(s) described herein. Baker Tilly is responsible for notifying you if Baker Tilly becomes aware that it can no longer comply with any applicable privacy law and, upon such notice, shall permit you to take reasonable and appropriate steps to remediate personal data or personal information processing.

7.2. General Data Protection Regulation. To the extent your use of the Product(s) involves the transfer of any personal data or personal information to Baker Tilly, you agree such transfer will be subject to the Personal Data Processing Agreement found at: bakertilly.com/page/customer-terms.

7.3. Data Aggregation. By uploading data to a Product (“Uploaded Data”), you give Baker Tilly and its subsidiaries (and those third parties Baker Tilly works with in the provision of services) a worldwide license to use, host, store, reproduce and modify such Uploaded Data for the purpose of providing Baker Tilly’s services, as set forth in any applicable Statement of Work, Order Form, Master Services Agreement, or other agreement between you and Baker Tilly. By using a Product, you represent and warrant that you have the necessary rights to grant Baker Tilly this license and for using the Uploaded Data in association with the Products. By uploading data to any Baker Tilly Products, you acknowledge that you understand, accept, and agree to be bound by these Uploaded Data requirements. You further understand BTVK Advisory, LLP, Baker Tilly US, LLP and Baker Tilly Advisory Group, LP will co-process your Data as necessary to provide the Product(s). You agree that Baker Tilly has the right to utilize Uploaded Data to improve internal processes and procedures and to generate aggregated/de-identified data from the data provided by you to be used for Baker Tilly business purposes and with the outputs owned by Baker Tilly. For clarity, Baker Tilly will only disclose aggregated/de-identified data in a form that does not identify you, your employees, or any other individual or business entity and that is stripped of all persistent identifiers. You are not responsible for Baker Tilly’s use of aggregated/de-identified data.

7.4. Information Security. Baker Tilly has established information security related operational requirements that support the achievement of its information security commitments, relevant information security related laws and regulations, and other information security related system requirements. Such requirements are communicated in Baker Tilly’s policies and procedures, system design documentation, and contracts with customers. Information security policies have been implemented that define Baker Tilly’s approach to how systems and data are protected. You are responsible for providing timely written notification to Baker Tilly of any additions, changes or removals of access for you or your personnel to Baker Tilly provided systems or applications. If you become aware of any known or suspected information security or privacy related incidents or breaches related to this EULA or your use of the Product(s), you should timely notify Baker Tilly via email at dataprotectionofficer@bakertilly.com.

7.5. Marketing. Baker Tilly hereby retains, and you hereby grant to Baker Tilly, the right to access the Products and any services you order hereunder for any reasonable business purpose, including but not limited to, providing support, determining usage for billing, Product notifications, and marketing. To the extent that this requires Baker Tilly to be identified as an authorized access party, you hereby authorize Baker Tilly to configure such settings (if Baker Tilly maintains administrative access) and you agree to configure (if Baker Tilly does not maintain administrative access) and to maintain such settings for the duration of the applicable subscription period.

8.1. Governing Law. The validity, construction and enforcement of this EULA shall be determined in accordance with the laws of England and Wales, without reference to its conflicts of laws principles, and any action (whether by arbitration or in court) arising under this EULA shall be brought exclusively in London. Both parties consent to the personal jurisdiction of the courts located in London.

8.2. Dispute Resolution. All disputes and controversies between the parties hereto of every kind and nature arising out of or in connection with this EULA as to the existence, construction, validity, interpretation or meaning, performance, nonperformance, enforcement, operation, breach, continuation or termination of this EULA shall be resolved as set forth in this Section using the following procedure: In the unlikely event that differences concerning the Product(s) or fees should arise that are not resolved by mutual agreement, the parties agree that the dispute or claim shall be settled by binding arbitration. The arbitration proceeding shall take place in London, England. The arbitrator shall have no authority to award nonmonetary or equitable relief and will not have the right to award punitive damages or statutory awards. Furthermore, in no event shall the arbitrator have power to make an award that would be inconsistent with the EULA or any amount that could not be made or imposed by a court deciding the matter in the same jurisdiction. The award of the arbitration shall be in writing and shall be accompanied by a well-reasoned opinion. The award issued by the arbitrator may be confirmed in a judgment by any court of competent jurisdiction. Discovery shall be permitted in arbitration only to the extent, if any, expressly authorized by the arbitrator(s) upon a showing of substantial need. Each party shall be responsible for their own costs associated with the arbitration, except that the costs of the arbitrator shall be equally divided by the parties. Both parties agree and acknowledge that they are each giving up the right to have any dispute heard in a court of law before a judge and a jury, as well as any appeal. The arbitration proceeding and all information disclosed during the arbitration shall be maintained as confidential, except as may be required for disclosure to professional or regulatory bodies or in a related confidential arbitration. The arbitrator(s) shall apply the limitations period that would be applied by a court deciding the matter in the same jurisdiction, including the contractual limitations set forth in this EULA, and shall have no power to decide the dispute in any manner not consistent with such limitations period. The arbitrator(s) shall be empowered to interpret the applicable statutes of limitations.

8.3. Notices. Baker Tilly may provide notice to you under this EULA by sending a message to the email address associated with your account. Such notices will be effective upon sending, regardless of whether or not you actually receive the email. You are responsible for keeping your email address up to date. To provide notice to Baker Tilly under this EULA, you must contact Baker Tilly by personal delivery, overnight courier or certified mail to the mailing address listed below. Notices by delivery will be effective upon receipt by Baker Tilly.

BTVK Advisory, LLP

5th Floor, London Wall Place

London, EC2Y 5AU

Attn: Legal Department

8.4. Relationship of Parties. The parties hereto are independent contractors. Nothing herein shall be deemed to constitute either party as the representative, agent, partner or joint venture of the other. Baker Tilly shall have no authority to bind you to any third-party agreement. Though the Product(s) may include advice and recommendations, all decisions regarding the implementation of such advice or recommendations shall be the responsibility of, and made by, you.

8.5. Confidential Information and Use of Baker Tilly Name. Baker Tilly agrees to keep confidential any non-public, proprietary information supplied by you in connection with this EULA, including but not limited to, any Uploaded Data, sensitive financial information, information marked by you as “confidential” or “proprietary” or information which a reasonable person would assume to be confidential based on the nature of the information and the circumstances surrounding the disclosure (the “Confidential Information”). Baker Tilly agrees to: (i) protect the Confidential Information in the same manner in which it protects its own Confidential Information of like importance, but in no case using less than reasonable care; and (ii) use the Confidential Information only as permitted by this EULA. This section shall not apply to information which is (a) publicly known, (b) already known to Baker Tilly, (c) disclosed to Baker Tilly by a third party without restriction, (d) independently developed by Baker Tilly without use of or reliance on the Confidential Information, or (e) disclosed pursuant to legal requirement or order, or as is required by regulations or professional standards governing Baker Tilly. You shall treat all information received from Baker Tilly as strictly confidential (“Baker Tilly’s Confidential Information”) and shall not disclose any such information without Baker Tilly’s prior written consent. You may use Baker Tilly’s Confidential Information only in connection with your use of the Product(s) as permitted under this EULA. You shall not disclose any Baker Tilly Confidential Information during the term of this EULA or for five (5) years following termination of this EULA. You shall not use Baker Tilly’s name or associated copyrights or trademarks without Baker Tilly’s prior written consent.

8.6. Baker Tilly Entity. BTVK Advisory, LLP is a subsidiary of Baker Tilly Advisory Group, LP. Baker Tilly US, LLP and Baker Tilly Advisory Group, LP and its subsidiary entities provide professional services through an alternative practice structure in accordance with the AICPA Code of Professional Conduct and applicable laws, regulations and professional standards. Baker Tilly US, LLP is a licensed independent CPA firm that provides attest services to clients. Baker Tilly Advisory Group, LP and its subsidiary entities provide tax and business advisory services to their clients. Baker Tilly Advisory Group, LP and its subsidiary entities are not licensed CPA firms. Baker Tilly Advisory Group, LP and its subsidiaries and Baker Tilly US, LLP are independent members of Baker Tilly International. Baker Tilly International Limited is an English company. Baker Tilly International provides no professional services to clients. Each member firm is a separate and independent legal entity and each describes itself as such. Baker Tilly Advisory Group, LP and Baker Tilly US, LLP are not Baker Tilly International’s agents and do not have the authority to bind Baker Tilly International or act on Baker Tilly International’s behalf. None of Baker Tilly International, Baker Tilly Advisory Group, LP, Baker Tilly US, LLP, nor any of the other member firms of Baker Tilly International has any liability for each other’s acts or omissions. The name Baker Tilly and its associated logo is used under license from Baker Tilly International Limited.

8.7. Entire Agreement. Unless you have entered into another Agreement with BTVK Advisory, LLP or an affiliate, this EULA supersedes all prior written or oral agreements, warranties or representations with respect to your use of the Baker Tilly Product(s). Any professional services provided to you by BTVK Advisory, LLP, Baker Tilly Advisory Group, LP or Baker Tilly US, LLP shall be governed by a separate services agreement. In the event that any provision of this EULA is held by a court of competent jurisdiction to be unenforceable because it is invalid or in conflict with any law of any relevant jurisdiction, the validity of the remaining provisions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if the EULA did not contain the particular provisions held to be unenforceable. The unenforceable provisions shall be replaced by mutually acceptable provisions which, being valid, legal and enforceable, come closest to the intention of the parties underlying the invalid or unenforceable provision. Baker Tilly may assign and transfer this Agreement to any successor that acquires all or substantially all of the business or assets of Baker Tilly by way of merger, consolidation, other business reorganization, or the sale of interests or assets.