IMPORTANT: DO NOT USE THE SOFTWARE UNTIL YOU HAVE CAREFULLY READ THESE CPA.COM TERMS OF SERVICE (THE "AGREEMENT"). BY CLICKING THE "ACCEPT" BUTTON ON THIS PAGE OR USING THE SOFTWARE, YOU ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL OR USE THE SOFTWARE AND WITH RESPECT TO ANY SOFTWARE DELIVERED ELECTRONICALLY, DESTROY ANY DOWNLOADED FILES.
AS DESCRIBED BELOW, USING THE SOFTWARE OPERATES AS YOUR CONSENT TO THE TRANSMISSION OF CERTAIN COMPUTER INFORMATION.
Revision Date: March 20, 2019.
ARTICLE 1. DEFINITIONS
"Client Software" means the downloaded software that operates on a Device and allows the Device to be incorporated into a Communications Network and access the hosted Software and other programs, services and databases through the Communications Network.
"Communications Network" means a data communication system, which allows a number of independent devices to communicate with each other, including its internal bridges and the workstations physically attached to it.
"CPA.com" means CPA.com, Inc., a Delaware corporation, located at 1345 Avenue of the Americas, New York, NY 10019.
"Device" means any equipment that accesses the Software, including but not limited to a virtual (or otherwise emulated) device, mobile phones, tablet computing devices, and computers.
"Documentation" means the manuals and any other material provided by CPA.com with the Software in electronic or print form.
"Internet" means the publicly accessible computer Communications Network for information distribution.
"Multiplexing" means any hardware or software You use to pool connections, reroute information, or reduce the number of Devices, Network Servers or users that directly access or use the Software, or reduce the number of Devices, Network Servers or users the Software directly manages, or Your use of Multiplexing.
"Network Server" means a single computing system that runs Software to permit access by Client Software located either on such single computing system or remotely over a Communications Network, including but not limited to a primary network server, a fail-over server, or a virtual (or otherwise emulated) server.
"Software" means the software You have received from or is hosted by CPA.com in connection with this Agreement, and corresponding documentation, printed materials, and online and electronic documentation, including any updates to such Software that you are entitled to receive and that has been provided to you by CPA.com.
"Trial Software" means any Software You access or otherwise receive from CPA.com for a limited time period for the purposes set forth in the Use of Trial Software section in Article 2 below.
"Update" means any maintenance release, update, upgrade or other modification to the Software.
"User" means each individual using the Software.
"You" or "Your" means the person who or business entity that is licensing Software pursuant to this Agreement.
ARTICLE 2. LICENSE
License Grant. Subject to the terms and conditions of this Agreement and payment of all applicable license fees, CPA.com grants to You a nonexclusive, nontransferable, nonsublicensable and revocable right to (i) use the Software; and (ii) use the Documentation in connection with Your use of the Software.
Multiplexing. Multiplexing does not reduce the number of licenses required to use the Software. The required number of licenses equals the number of distinct inputs to the multiplexing or pooling software or hardware "front end."
Use of Trial Software. Trial Software is licensed for the purpose of evaluation, testing and benchmark runs of the Software only. In no event shall You use the Trial Software for development, production or commercial purposes.
Pre-Release Software. Notwithstanding anything to the contrary in this Agreement, if the Software provided to You under this Agreement is identified as pre-release or beta Software, then You may not distribute or deploy such pre-release or beta Software outside Your testing environment. Neither CPA.com nor its suppliers will be liable for any damages whatsoever relating to Your use of such pre-release or beta Software.
Open Source Software. The Software may include third-party open source software ("Open Source Software"). Any Open Source Software provided hereunder is provided pursuant to the applicable Open Source Software license terms and conditions. Upon reasonable notice to You, CPA.com has the right to replace software provided to You as part of Open Source Software with software that has similar functionality. The license terms associated with Open Source Software may require that CPA.com provide copyright and license information to You. A list of the Open Source Software, if any, included in the Software and available to You from CPA.com, the applicable license terms, and how to obtain the Open Source Software (if not already provided to You as part of the Software) will be provided upon written request to CPA.com. Any provisions in this Agreement that differ from any Open Source Software license are offered by CPA.com alone and not by any other party. ALL OPEN SOURCE SOFTWARE IS PROVIDED ON AN "AS IS" BASIS, AND CPA.COM DISCLAIMS ALL WARRANTIES WITH REGARD TO OPEN SOURCE SOFTWARE, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL CPA.COM OR ITS LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR SPECIAL OR ANY OTHER DAMAGES WHATSOEVER, WHETHER IN AN ACTION INCLUDING CONTRACT, NEGLIGENCE, OR OTHER TORTIOUS CLAIMS, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE OPEN SOURCE SOFTWARE EVEN IF CPA.COM OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT SUCH LOSSES OR DAMAGES ARE FORESEEABLE. THIS LIMITATION WILL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM CPA.COM'S OR ITS LICENSORS' NEGLIGENCE TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION.
Update License Terms. Any Updates made available to You by CPA.com shall be considered part of the Software and subject to the terms and conditions of this Agreement. Additional license terms may accompany Updates. By using any Update, You agree to be bound by the terms accompanying each such Update. If You do not agree to the additional license terms accompanying such Updates, do not use the Software and terminate this Agreement pursuant to Article 8 of this Agreement.
ARTICLE 3. RESTRICTIONS
Your Eligibility to Use the Software. Only AICPA members who may represent themselves as certified public accountants ("CPAs"), in accordance with their respective State Boards' of Accountancy regulations, are eligible to use the Software. Because of state accounting board regulations, some individuals who have passed the Certified Public Accountant Examination are prohibited from presenting themselves as CPAs. Certain State Boards of Accountancy require current licensure of members "holding out" as a CPA. It is Your responsibility to determine and adhere to Your State Board's interpretations and requirements. If You are a CPA but not allowed to present Yourself as a CPA or are in the process of pursuing your CPA certification, You are not eligible to use the Software. We reserve the right to immediately disable and permanently terminate any account we find, in our sole judgment, to be in violation of such regulations.
Protection of Software. You will not attempt to or in fact disassemble, decompile or otherwise reverse engineer the Software, except and only to the extent that applicable law expressly permits such actions, despite this limitation.
Use with Other Software Applications. If You received this Software bundled with or embedded with any other software application (e.g., from an authorized reseller or original equipment manufacturer of CPA.com), You may only use the Software with such software application.
No Rental or Commercial Hosting. Except as expressly authorized in this Agreement, You will not use, rent, lease, sublicense, distribute, transfer, copy, reproduce, display, modify, or create derivative works of, the Software or Documentation or any part thereof. You may use the Software solely in accordance with the Documentation. You may use the Software solely for your internal business purposes and except with the express written consent of CPA.com, You may not use the Software to host applications for third parties or to provide service bureau, time-sharing or other computer services to third parties.
ARTICLE 4. AUTHORIZATION; VALIDATION. In order to use the Software, You will need authorization from CPA.com. Software authorization associates the use of the Software with a specific user. During authorization, the Software may exchange information about the Software and the Device with CPA.com. Validation verifies that use of the Software has been authorized and is properly licensed. The information sent to CPA.com may include, but is not limited to: (i) information derived from the hardware configuration of the Device, such as hard drive serial number, NIC card MAC address, BIOS firmware, CPU type and OS type, (ii) information about existing or past CPA.com installations and items of a similar nature; and (iii) information about the individual user. By using the Software or Documentation, You consent to the transmission of this information during any validation check or the operation of the Software. For more information about what is sent during a validation check, please contact CPA.com. You have the right to use the version of the Software as long as You hold a valid license; however, Your use of the Software without authorization may be governed by a limiting device in the Software. You will not be able to continue using the Software unless You obtain authorization.
ARTICLE 5. OWNERSHIP.
Proprietary to CPA.com. The Software is proprietary commercial software developed by CPA.com or its licensors. CPA.com or its licensors own all right, title, and interest in and to the Software and Documentation (including any copies) and any intellectual property rights embodied therein will be vested solely in CPA.com and its licensors. The Software is being licensed, not sold. CPA.com and its licensors reserve all rights not expressly granted to You. Subject to the rights expressly granted to You herein, nothing in the Agreement shall be construed directly or indirectly to assign or grant to You any right, title or interest in or to trademarks, copyrights, trade secrets or other intellectual property of CPA.com or its licensors.
Your Data. You warrant that You are the owner, custodian or licensee of any data transmitted through or interfacing with the Software and that You have full authority to transmit any data in accordance with the terms of this Agreement.
ARTICLE 6. NOTICES. You will not remove or in any manner alter or obscure the copyright, trademark and other proprietary rights notices of CPA.com and its licensors appearing on the Software or documentation. You have no right to register or seek to register any of CPA.com's or its licensors' trademarks, service marks, or trade names, or add any other notices or markings to the Software or Documentation.
ARTICLE 7. ASSIGNMENT. You may not assign or otherwise transfer in whole or in part or in any manner any rights, obligations or interests in or under this Agreement without CPA.com's prior written consent and any attempted assignment will be null and void. Your merger or other acquisition by a third party will be treated as an assignment. CPA.com may at any time and without Your consent assign all or a portion of its rights and duties under this Agreement.
ARTICLE 8. TERM AND TERMINATION. This Agreement is effective from the date You access, download or install the Software (the "Effective Date") and, unless this Agreement is for a license for Trial Software or is earlier terminated in accordance with the Update License Terms Section of Article 2 or with this Article 8, will remain in force for an initial term of one (1) year from the Effective Date (the "Initial Term"). Unless terminated in accordance with the Update License Terms Section of Article 2 or this Article 8, this Agreement shall continue following the Initial Term for additional one (1) year terms (each, a "Renewal Term"). Either party may terminate this Agreement effective at the end of the Initial Term or of any Renewal Term by providing the other party with notice of termination at least thirty (30) days prior to the end of such Initial Term or Renewal Term, as the case may be. The Initial Term, any Renewal Terms and any other period of continuation of this Agreement prior to its termination are referred to herein collectively as the "Term". In no event will the term of the license for Trial Software be more than thirty (30) days from the Effective Date without express written approval from CPA.com. This Agreement will terminate immediately upon notice from CPA.com if You fail to comply with any terms of this Agreement. Additionally, CPA.com reserves the right to terminate this Agreement, for any reason or no reason at all, upon providing You with prior notice. Upon expiration or termination of this Agreement for any reason, You will destroy all copies of the Client Software (if any) and Documentation, and upon request, You will certify such destruction to CPA.com. Article 1, the Use of Trial Software, Pre-Release Software and Open Source Software sections in Article 2, and Articles 3, 5, 8, 9, 10, 12, 13, 14 and 15 of this Agreement, will survive any termination hereof.
ARTICLE 9. LIMITED WARRANTY.
DISCLAIMER OF WARRANTY. CPA.COM LICENSES THE SOFTWARE TO YOU UNDER THIS AGREEMENT SOLELY ON AN "AS IS" BASIS. CPA.COM MAKES NO REPRESENTATIONS, CONDITIONS OR WARRANTIES WHATSOEVER, EITHER EXPRESS OR IMPLIED, REGARDING THE SOFTWARE AND DOCUMENTATION: CPA.COM EXPRESSLY STATES AND YOU ACKNOWLEDGE THAT CPA.COM DOES NOT MAKE ANY REPRESENTATIONS, CONDITIONS OR WARRANTIES, INCLUDING WITH RESPECT TO MERCHANTABILITY, TITLE, NONINFRINGEMENT, FITNESS FOR ANY PARTICULAR PURPOSE, OR ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
High Risk Activities. The Software is not fault-tolerant and is not designed, manufactured or intended for use or resale in hazardous environments regarding fail-safe performance. Failure of the Software could lead directly to death, personal injury, or severe physical or environmental damage ("High Risk Activities"). CPA.com and its suppliers specifically disclaim any express or implied warranty of fitness for High Risk Activities.
Warranty by Operation of Law. If applicable law requires any warranties with respect to the Software, all such warranties are limited in duration to ninety (90) days from the date of Your first use. Your exclusive remedy for any non-performing Software under any legally-required warranty is a refund for Your purchase price of the Software. Any misuse, accident, abuse, modification or misapplication of the Software will void this warranty. THIS IS THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO YOU FOR BREACH OF EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SOFTWARE AND RELATED DOCUMENTATION.
ARTICLE 10. LIMITATION OF LIABILITY.
CPA.COM'S AGGREGATE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT OR THE SOFTWARE OR DOCUMENTATION IS LIMITED TO THE TOTAL OF ALL PAYMENTS MADE BY OR FOR YOU FOR THE SOFTWARE UNDER THIS AGREEMENT IN THE YEAR PRECEDING YOUR ASSERTION OF A CLAIM.
CONSEQUENTIAL DAMAGES. IN NO EVENT WILL CPA.COM OR ITS LICENSORS BE LIABLE TO YOU FOR ANY LOST PROFITS, LOST OR DEGRADED DATA, INTERRUPTION OF BUSINESS, PROCUREMENT OF SUBSTITUTE PRODUCTS, OR FOR INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER UNDER A THEORY OF WARRANTY, TORT, PRODUCTS LIABILITY OR OTHERWISE, EVEN IF CPA.COM OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH LOSSES OR DAMAGES ARE FORESEEABLE. THIS LIMITATION WILL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM CPA.COM'S OR ITS LICENSORS' NEGLIGENCE TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION.
ARTICLE 11. INTELLECTUAL PROPERTY INDEMNIFICATION.
IP Indemnity. CPA.com will defend, at its own expense, any claim, suit or proceeding brought against You to the extent it is based upon a claim that Your use of the Software in the United States pursuant to this Agreement infringes upon any United States patent, copyright, trademark or trade secret of a third party. You agree that You will promptly notify CPA.com in writing of any such claim or action and give CPA.com full information and assistance in connection therewith. CPA.com will have the sole right to control the defense of and settle any such claim or action. If You comply with the provisions of this Agreement, CPA.com will pay all damages, costs and expenses finally awarded to third parties against You in such action. If the Software is, or in CPA.com's opinion might be, held to infringe as set forth above, CPA.com may, at its option, replace or modify the Software so as to avoid infringement, or procure the right for You to continue to use the Software.
Exceptions to Indemnity. CPA.com will have no liability for any claim of infringement arising as a result of: a) Your use of the Software in combination with any items not supplied by CPA.com; b) any modification of the Software at Your request; c) use of other than the latest revision of the Software if use of the latest version would have avoided infringement; or d) use outside the scope of the granted license.
Scope of IP Indemnity. This Article describes CPA.com's entire liability concerning infringement of intellectual property rights, including but not limited to patent, copyright, trademark and trade secret rights.
ARTICLE 12. YOUR INDEMNITY.
The Software is intended for use only with properly licensed media, content and content creation tools. It is solely Your responsibility to ascertain whether any copyright, patent or other license(s) are necessary and to obtain any such licenses to use such media and content with the Software. You agree to use only such data or materials for which you have the necessary rights (e.g., patent or copyright) or permissions, licenses or clearances. You agree to hold harmless and indemnify and defend CPA.com, and its officers, directors and employees, from and against any losses, damages, fines and expenses (including attorneys' fees and costs) arising out of or relating to CPA.com's or its vendors' possession of your data or any claims that You may have encoded, compressed, copied or transmitted any data or materials (other than those provided by CPA.com) in connection with the Software in violation of a third party's rights or in violation of any law.
ARTICLE 13. EQUITABLE REMEDIES.
You agree that a material breach of this Agreement adversely affecting CPA.com's intellectual property rights in the Software or other confidential materials provided under the Agreement would cause irreparable injury to CPA.com for which monetary damages would not be an adequate remedy and, therefore, that CPA.com shall be entitled to equitable relief (e.g., an injunction) to limit or prevent such a breach in addition to any remedies it may have under the law.
ARTICLE 14. RESOLUTION OF DISPUTES.
In the event of any dispute arising out of or relating to this Agreement, You and CPA.com shall attempt in good faith to resolve such dispute through informal means, including timely escalation of the dispute to senior management having full settlement authority. If the dispute is not resolved as a result of these efforts, the matter will be submitted to final and binding arbitration under the rules of the American Arbitration Association. You agree to cooperate in selecting an arbitrator and in scheduling the arbitration proceedings to be conducted by one arbitrator in the English language, applying the substantive laws of the United States of America and New York, excluding its laws pertaining to a "conflicts of law." The site of any proceedings shall be New York County, New York. The provisions of this Article and any resulting award may be enforced by any court of competent jurisdiction. The prevailing party in any arbitration shall be entitled to an award of all costs, fees and reasonable expenses, including attorneys' fees, incurred as a result of the arbitration or any action to enforce the arbitration award. Punitive damages may not be awarded in connection with any arbitration proceeding arising out of or relating to this Agreement.
ARTICLE 15. GENERAL CONDITIONS.
Governing Law. This Agreement will be governed by, and interpreted in accordance with, the laws of United States of America and the State of New York exclusive of its choice of law provisions. To the extent the dispute is not heard by an arbitrator in accordance with Article 14, You hereby consent to the exclusive jurisdiction and venue of the state courts sitting in New York County, New York or the federal courts in the Southern District of New York to resolve any disputes arising under this Agreement and waive any objections to the propriety or convenience of venue in such courts. This Agreement expressly excludes the United Nations Convention on Contracts for the International Sale of Goods.
Complete Understanding. This Agreement sets forth the entire understanding and agreement between You and CPA.com with respect to the subject matter hereof and may be amended only in a writing signed by both parties. NO VENDOR, DISTRIBUTOR, DEALER, RETAILER, SALES PERSON OR OTHER PERSON IS AUTHORIZED TO MODIFY THIS AGREEMENT OR TO MAKE ANY WARRANTY, REPRESENTATION OR PROMISE DIFFERENT FROM, OR IN ADDITION TO, THIS AGREEMENT ABOUT THE SOFTWARE.
Basis of the Bargain. Articles 9 (Limited Warranty) and 10 (Limitation of Liability) are fundamental elements of the basis of the agreement between CPA.com and You. CPA.com would not be able to provide the Software on an economic basis without such limitations. Such limitation of liability and limited warranty also inure to the benefit of CPA.com's licensors.
Waiver. No waiver of any right under this Agreement will be effective unless it is in writing and signed by a duly authorized representative of CPA.com. No waiver of any past or present right arising from any breach or failure to perform will be deemed to be a waiver of any future right arising under this Agreement.
Use of Marks; Publicity. You agree not to use CPA.com's name, trademarks, service marks, or logos in any press release, publicity, advertising or marketing materials or reveal the existence of the parties' business relationship or the details of this Agreement without CPA.com's prior written consent, except as may be required by law or court order.
Audit. You authorize CPA.com or its designee to audit Your compliance with this Agreement, as CPA.com deems reasonable.
Severability. If any provision in this Agreement is held invalid or unenforceable, then that provision will be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, and the other provisions of this Agreement will remain unaffected.
Export Controls. None of the Software or underlying information or technology may be downloaded to, used by or otherwise exported or re-exported to (i) any country, or a national or resident thereof, to which the U.S. has embargoed goods; or (ii) any person or entity on the U.S. Treasury Department's list of Specially Designated Nationals, the U.S. Commerce Department's Table of Denial Orders, or the U.S. Commerce Department's Entity List of Missile, Nuclear, and Chemical and Biological Weapons Proliferators, or the U.S. Department of State's Foreign Terrorist Organization List. You agree to the foregoing and You represent and warrant that You are not located in, under the control of, or a national or resident of such country, and are not on any such list. The Software may also be subject to U.S. laws and export regulations of the U.S. Government that require an explicit export license before any export or re-export of the Software. You will obtain any such export license that may be required.
U.S. Government End Users. If You are an agency, department, or other entity of the United States government ("Government"), then the use, duplication, reproduction, release, modification, disclosure or transfer of the Software and Documentation is restricted in accordance with Federal Acquisition Regulation ("FAR") 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement ("DFARS") 227.7202 for military agencies. The Software and Documentation are commercial computer software and commercial computer software documentation. The use of the Software and Documentation is further restricted in accordance with the terms of this Agreement, or any modification thereto. The Contractor/Manufacturer is CPA.com, Inc., 1345 Avenue of the Americas, New York, NY 10019.
Operating System. It is Your responsibility to comply fully with applicable license agreements for any operating systems, browsers, other software or ISPs You may use with the Software.
Performance Results. Results of benchmark tests or other performance tests run on the Software may not be disclosed to any third party without CPA.com's prior written consent.
User License Updates. CPA.com may change the terms of this Agreement without notice. You consent to receive updates to the Agreement by email, first-class mail or facsimile. You may not change the terms of this Agreement without receiving CPA.com's signed, written agreement to such change.
Questions and Notices. All questions and notices concerning this Agreement shall be directed to: CPA.com, Inc., 1345 Avenue of the Americas, New York, NY 10019.