End User Licence Agreement

Comply agrees to provide access to the Comply Software on the terms and conditions set out in this document.

1. Scope and Applicability

This End User License Agreement (“EULA”) sets out the terms agreed between You and Comply covers use of the Software and Services (“Comply Software”). The EULA also includes any Product Specific Terms. You will find full definitions of capitalized terms at the end of the EULA in clause 13 (Definitions).

You agree to the terms of this EULA by (a) downloading, installing, or using the Comply Software; or (b) by expressly agreeing to the EULA.

If you are entering into the EULA on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these terms and conditions. If you do not have such authority or if you do not agree with the terms and conditions of this EULA agreement, do not use the Comply Software, and you must not accept this EULA agreement.

2. Using Comply Software

2.1. License and Right to Use. Comply hereby grants you a personal, non-transferable, non-exclusive license to use the Comply Software on your devices in accordance with the terms of this EULA agreement (“Usage Rights”).

2.2. Beta and Trial Use. If Comply grants You Usage Rights in the applicable Comply Software on a trial, evaluation, beta or other free-of-charge basis (“Evaluation Software and Services”), You may only use the Evaluation Software and Services on a temporary basis for the period limited by the license key or specified by Comply in writing.  If there is no period identified, such use is limited to 30 days after the Evaluation Software and Services are made available to You.  If You fail to stop using and/or return the Evaluation Software and Services or the equipment on which it is authorized for use by the end of the trial period, You may be invoiced for its list price and agree to pay such invoice.  Comply, in its discretion, may stop providing the Evaluation Software and Services at any time, at which point You will no longer have access to any related data, information, and files and must immediately cease using the Comply Software.  The Evaluation Software and Services may not have been subject to Comply’s usual testing and quality assurance processes and may contain bugs, errors, or other issues.  Except where agreed to in writing by Comply, You will not put Evaluation Software and Services into production use.  Comply provides Evaluation Software and Services “AS-IS” without support or any express or implied warranty or indemnity for any problems or issues, and Comply will not have any liability relating to Your use of the Evaluation Software and Services.

2.3. Upgrades or Additional Copies of Comply Software. You may only use Upgrades or additional copies of the Comply Software beyond Your license Entitlement if You have (a) acquired such rights under a support agreement covering the applicable Comply Software; or (b) You have purchased the right to use Upgrades or additional copies separately.

2.4. Interoperability of Comply Software. If required by law and upon Your request, Comply will provide You with the information needed to achieve interoperability between the Comply Software and another independently created program, provided You agree to any additional terms reasonably required by Comply. You will treat such information as Confidential Information.

2.5. Renewal. Usage Rights in Comply Software will automatically renew for the renewal period indicated on the order placed with Comply (“Renewal Term”) unless Comply is notified in writing at least 45 days before the end of Your then-current Usage Term of Your intention not to renew. Comply will notify You reasonably in advance of any Renewal Term if there are fee changes. The new fees will apply for the upcoming Renewal Term unless You promptly notify Comply in writing, before the renewal date, that You do not accept the fee changes. In that case, Your Usage Rights will terminate at the end of the current Usage Term.

3. Additional Conditions of Use

3.1. Unless expressly agreed by Comply, You may not (a) Edit, alter, modify, adapt, translate or otherwise change the whole or any part of the Comply Software, nor permit the whole or any part of the Comply Software to be combined with or become incorporated in any other software, nor decompile, disassemble or reverse engineer the Comply Software or attempt to do any such things; (b) Reproduce, copy, distribute, resell, or otherwise use the Comply Software for any commercial purpose; (c) Allow any third party to use the Software on behalf of or for the benefit of any third party; (d) Use the Software in any way which breaches any applicable local, national, or international law; or (e) Use the Software for any purpose that Comply Exchange considers is a breach of this EULA agreement.

3.2. Evolving Comply Software. Comply may: (a) enhance or refine the Comply Software, although in doing so, Comply will not materially reduce the core functionality of the Comply Software, except as contemplated in this clause; and (b) perform scheduled maintenance of the infrastructure, during which time You may experience some disruption.  Whenever reasonably practicable, Comply will provide You with advance notice of such maintenance.  You acknowledge that, from time to time, Comply may need to perform emergency maintenance without providing You advance notice, during which time Comply may temporarily suspend Your access to, and use of, the Comply Software.

3.3. Comply may end the life of Comply Software, including component functionality (“EOL”), by providing written notice on www.complypro.com. If You prepaid a fee for Your use of the Comply Software that becomes EOL before the expiration of Your then-current Usage Term, Comply will use commercially reasonable efforts to transition You to a substantially similar Comply Software. If Comply does not have substantially similar Comply Software, then Comply will credit You any unused portion of the prepaid fee for the Comply Software that has been declared EOL (“EOL Credit”).  The EOL Credit will be calculated from the last date the applicable Comply Software is available to the last date of the applicable Usage Term.  Such credit can be applied towards the future purchase of Comply products.

3.4. Protecting Account Access. You will keep all account information up to date, use reasonable means to protect Your account information, passwords and other login credentials, and promptly notify Comply of any known or suspected unauthorized use of or access to Your account.

3.5. Use with Third Party Products. If You use the Comply Software together with third-party products, such use is at Your risk.  You are responsible for complying with any third-party provider terms, including its privacy policy.  Comply does not provide support or guarantee ongoing integration support for products that are not a native part of the Comply Software.

3.6. Open-Source Software. Open-source software not owned by Comply is subject to separate license terms as set out at www.complypro.com. Any open-source software will not materially or adversely affect Your ability to exercise Usage Rights in applicable Comply Software.

4. Fees

To the extent permitted by law, orders for the Comply Software are non-cancellable. Fees for Your use of Comply Software are set out in Your purchase terms.  If You use Comply Software beyond Your Entitlement (“Overage”), Comply may invoice You, and You agree to pay, for such Overage.

5. Confidential Information and Use of Data

5.1. Confidentiality. Recipient will hold in confidence and use no less than reasonable care to avoid disclosure of any Confidential Information to any third party, except for its employees, affiliates, and contractors who have a need to know (“Permitted Recipients”). Recipient: (a) must ensure that its Permitted Recipients are subject to written confidentiality obligations no less restrictive than the Recipient’s obligations under this EULA, and (b) is liable for any breach of this Section by its Permitted Recipients. Such nondisclosure obligations will not apply to information that: (i) is known by Recipient without confidentiality obligations; (ii) is or has become public knowledge through no fault of Recipient; or (iii) is independently developed by Recipient. Recipient may disclose Discloser’s Confidential Information if required under a regulation, law or court order provided that Recipient provides prior notice to Discloser (to the extent legally permissible) and reasonably cooperates, at Discloser’s expense, regarding protective actions pursued by Discloser. Upon the reasonable request of Discloser, Recipient will either return, delete or destroy all Confidential Information of Discloser and certify the same.

5.2. How We Use Data. Comply will access, process and use data in connection with Your use of the Comply Software in accordance with applicable privacy and data protection laws.

5.3. Notice and Consent. To the extent Your use of the Comply Software requires it, You are responsible for providing notice to, and obtaining consents from, individuals regarding the collection, processing, transfer and storage of their data through Your use of the Comply Software.

6. Ownership

Comply retains ownership of the Comply Software as originally used by you and all subsequent uses of the Comply Software by you. The Comply Software (and the copyright, and other intellectual property rights of whatever nature in the Comply Software, including any modifications made thereto) are and shall remain the property of Comply.

7. Indemnification

7.1. Claims. Comply will defend any third-party claim against You that Your valid use of Comply Software under Your Entitlement infringes a third party’s patent, copyright or registered trademark (the “IP Claim”). Comply will indemnify You against the final judgment entered by a court of competent jurisdiction or any settlements arising out of an IP Claim, provided that You: (a) promptly notify Comply in writing of the IP Claim; (b) fully cooperate with Comply in the defense of the IP Claim; and (c) grant Comply the right to exclusively control the defense and settlement of the IP Claim, and any subsequent appeal. Comply will have no obligation to reimburse You for attorney fees and costs incurred prior to Comply’s receipt of notification of the IP Claim. You, at Your own expense, may retain Your own legal representation.

7.2. Additional Remedies. If an IP Claim is made and prevents Your exercise of the Usage Rights, Comply will either procure for You the right to continue using the Comply Software or replace or modify the Comply Software with functionality that is at least equivalent. Only if Comply determines that these alternatives are not reasonably available, Comply may terminate Your Usage Rights granted under this EULA upon written notice to You and will refund You a prorated portion of the fee You paid for the Comply Software for the remainder of the unexpired Usage Term.

7.3. Exclusions. Comply has no obligation with respect to any IP Claim based on: (a) compliance with any designs, specifications, or requirements You provide or a third party provides on Your behalf; (b) Your modification of any Comply Software or modification by a third party; (c) the amount or duration of use made of the Comply Software, revenue You earned, or services You offered; (d) combination, operation, or use of Comply Software with non-Comply products, software or business processes; (e) Your failure to modify or replace Comply Software as required by Comply; or (f) any Comply Software provided on a no charge, beta or evaluation basis.

7.4. This clause 7 is Comply’s entire obligation and Your exclusive remedy regarding any IP Claims against You.

8. Warranties and Representations

8.1. Performance. Comply warrants that (a) the Comply Software substantially complies with the Documentation; and (b) during the Usage Term, it provides the Comply Software with commercially reasonable skill and care in accordance with the Documentation and Product Specific Terms.

8.2. Malicious Code. Comply will use commercially reasonable efforts to deliver the Comply Software free of Malicious Code.

8.3. Qualifications. Comply will not be responsible in any way if the Comply Software or the equipment on which it is authorized for use: (a) has been altered, except by Comply or its authorized representative; (b) has been subjected to abnormal physical conditions, accident or negligence, or installation or use inconsistent with this EULA or Comply’s instructions; or (c) is acquired on a no charge, beta or evaluation basis. If you provide Comply with prompt written notification of any claim pursuant to this clause 8, Your sole and exclusive remedy (unless otherwise required by applicable law) is, at Comply’s option, either (i) repair or replacement of the applicable Comply Software or (ii) a refund of the license fees paid or due for the non-conforming Comply Software, less any amounts paid under a service level agreement/objective, if applicable.

8.4. Where Comply provides a refund of license fees paid for Comply Software, You must return or destroy all copies of the applicable Comply Software. Except as expressly stated in this clause, to the extent allowed by applicable law, Comply expressly disclaims all warranties and conditions of any kind, express or implied, including without limitation any warranty, condition, or other implied term as to merchantability, fitness for a particular purpose or non-infringement, or that the Comply Software will be secure, uninterrupted or error free.

8.5. You understand that in providing the Comply Software, Comply is not engaged in rendering legal, accounting, tax, or other professional advice and services. As such, it should not be used as a substitute for consultation with professional accounting, tax, legal or other competent advisers.

9. Liability

Neither party will be liable for indirect, incidental, exemplary, special or consequential damages; loss or corruption of data or interruption or loss of business; or loss of revenues, profits, goodwill or anticipated sales or savings. The maximum aggregate liability of each party under this EULA is limited to (a) for claims solely arising from Comply Software licensed on a perpetual basis, the fees received by Comply for the Comply Software; or (b) for all other claims, the fees received by Comply for the applicable Comply Software and attributable to the 12-month period immediately preceding the first event giving rise to such liability.

These limitations of liability do not apply to liability arising from (a) Your failure to pay all amounts due; or (b) Your breach of clause 2.1 (License and Right to Use). This limitation of liability applies whether the claims are in warranty, contract, tort (including negligence), infringement, or otherwise, even if either party has been advised of the possibility of such damages. Nothing in this EULA limits or excludes any liability that cannot be limited or excluded under applicable law.

10. Termination

10.1. Termination. The EULA will terminate immediately if you fail to comply with any term of this EULA agreement. Upon such termination, the licenses granted by this EULA agreement will immediately terminate and you agree to stop all access and use of the Software. The provisions that by their nature continue and survive will survive any termination of this EULA agreement.

11. Verification

During the Usage Term and for a period of 12 months after its expiry or termination, You will take reasonable steps to maintain complete and accurate records of Your use of the Comply Software sufficient to verify compliance with this EULA (“Verification Records”). Upon reasonable advance notice, and no more than once per 12-month period, You will, within 30 days from Comply’s notice, allow Comply and its auditors access to the Verification Records and any applicable books, systems (including Comply Software or other equipment), and accounts during Your normal business hours. If the verification process discloses underpayment of fees: (a) You will pay such fees; and (b) You will also pay the reasonable cost of the audit if the fees owed to Comply as a result exceed the amounts You paid for Your Usage Rights by more than 5%.

12. General Provisions

12.1. Survival. Sections 4, 5, 6, 8, 9, 10, 11 and 12 survive termination or expiration of this EULA.

12.2. Third Party Beneficiaries. This EULA does not grant any right or cause of action to any third party.

12.3. Assignment and Subcontracting. Except as set out below, neither party may assign or novate this EULA in whole or in part without the other party’s express written consent. Comply may (a) by written notice to You, assign or novate this EULA in whole or in part to an Affiliate of Comply, or otherwise as part of a sale or transfer of any part of its business; or (b) subcontract any performance associated with the Comply Software to third parties, provided that such subcontract does not relieve Comply of any of its obligations under this EULA.

12.4. U.S. Government End Users. The Software, Cloud Services and Documentation are deemed to be “commercial computer software” and “commercial computer software documentation” pursuant to FAR 12.212 and DFARS 227.7202. All U.S. Government end users acquire the Comply Software with only those rights set forth in this EULA. Any provisions that are inconsistent with federal procurement regulations are not enforceable against the U.S. Government.

12.5. Comply Partner Transactions. If You purchase Comply Software from a Comply Partner, the terms of this EULA apply to Your use of that Comply Software and prevail over any inconsistent provisions in Your agreement with the Comply Partner.

12.6. Modifications to the EULA. Comply may change this EULA or any of its components by updating this EULA on www.complypro.com. Changes to the EULA apply to any Entitlements acquired or renewed after the date of modification.

12.7. Compliance with Laws. Each party will comply with all laws and regulations applicable to their respective obligations under this EULA. Comply may restrict the availability of the Comply Software in any particular location or modify or discontinue features to comply with applicable laws and regulations.

12.8. If You use the Comply Software in a location with local laws requiring a designated entity to be responsible for collection of data about individual end users and transfer of data outside of that jurisdiction (e.g. Russia and China), You acknowledge that You are the entity responsible for complying with such laws.

12.9. Export. Comply’s Software, products, Software and services (collectively the “Comply Products”) are subject to U.S. and local export control and sanctions laws. You acknowledge and agree to the applicability of and Your compliance with those laws, and You will not receive, use, transfer, export or re-export any Comply Products in a way that would cause Comply to violate those laws. You also agree to obtain any required licenses or authorizations.

12.9. Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of England and Wales. Each party hereby consents and submits to the exclusive jurisdiction of such courts.

12.10. Notice. Any notice delivered by Comply to You under this EULA will be delivered via email, regular mail or postings on Comply.com. Notices to Comply should be sent to Comply’s registered office address.

12.11. Force Majeure. Except for payment obligations, neither party will be responsible for failure to perform its obligations due to an event or circumstances beyond its reasonable control.

12.12. No Waiver. Failure by either party to enforce any right under this EULA will not waive that right.

12.13. Severability. If any portion of this EULA is not enforceable, it will not affect any other terms.

12.14. Entire agreement. This EULA is the complete agreement between the parties with respect to the subject matter of this EULA and supersedes all prior or contemporaneous communications, understandings or agreements (whether written or oral).

12.15. Order of Precedence. If there is any conflict between this EULA and any Product Specific Terms expressly referenced in this EULA, the order of precedence is: (a) such Product Specific Terms; (b) this EULA (excluding the Product Specific Terms and any Comply policies); then (c) any applicable Comply policy expressly referenced in this EULA.

13. Definitions

“Admin” means Comply’s provision of back-office verification, validation and management, and handling of both paper forms and electronic documentation including standard management reporting functionality.

“Administration Support” means provision of tax operational services by Comply’s Client Account Services Group (CASG) Administrator using the Comply Software and Your internal tax processes and procedures to provide You with Tax Operational Services, including adding entity record data (electronic and/or manual), adding form data, issue management process, licensee request processing and report generation.

“Affiliate” means any corporation or company that directly or indirectly controls, or is controlled by, or is under common control with the relevant party, where “control” means to: (a) own more than 50% of the relevant party; or (b) be able to direct the affairs of the relevant party through any lawful means (e.g., a contract that allows control).

“Authorized Third Parties” means Your Users, Your Affiliates, Your third-party service providers, and each of their respective Users permitted to access and use the Comply Software on Your behalf as part of Your Entitlement.

“Comply” “we” “our” or “us” means Comply Exchange Limited with its registered office address at Amberwood, Warren Drive, Kingswood, Surrey, KT20 6PY United Kingdom or its applicable Affiliate(s).

“ComplyLite” means Comply’s simplified hosted environment which provides limited elements of the functionality of Admin.

“ComplyPro” means Comply’s portal offering access to subscription based non-CPE technical tax training courses and updates to assist learning and completing U.S. tax information reporting and withholding requirements.

“Comply Content” means any (a) content or data provided by Comply to You as part of Your use of the Comply Software and (b) content or data that the Comply Software generates or derives in connection with Your use.  Comply Content includes geographic and domain information, rules, signatures, threat intelligence and data feeds and Comply’s compilation of suspicious URLs.

“Comply Partner” means a Comply authorized reseller, distributor or systems integrator authorized by Comply to sell Comply Software.

“Confidential Information” means non-public proprietary information of the disclosing party (“Discloser”) obtained by the receiving party (“Recipient”) in connection with this EULA, which is (a) conspicuously marked as confidential or, if verbally disclosed, is summarized in writing to the Recipient within 14 days and marked as confidential; or (b) is information which by its nature should reasonably be considered confidential whether disclosed in writing or verbally.

“Delivery Date” means the date agreed in Your Entitlement, or where no date is agreed: (a) where Usage Rights in Software or Cloud Services are granted separately: (i) for Software, the earlier of the date Software is made available for download or installation, or the date that Comply ships the tangible media containing the Software, and (ii) for Cloud Services, the date on which the Cloud Service is made available for Your use; or (b) where Usage Rights in Software and Cloud Services are granted together, the earlier of the date Software is made available for download, or the date on which the Cloud Service is made available for Your use.

“Documentation” means the technical specifications and usage materials officially published by Comply specifying the functionalities and capabilities of the applicable Comply Software.

“E-Forms” means the Comply’s proprietary process for obtaining and managing electronic Forms W-8, W-9, 8233, self-certifications and associated Documentary Evidence as required.

“Entitlement” means the specific metrics, duration, and quantity of Comply Software that You commit to acquire from an Approved Source through individual acquisitions or Your participation in a Comply buying program.

“Helpdesk Console” means the simplified interface delivered to provide a call centre, helpdesk or other operational areas limited update and review facilities.

“Hosting” means the provision of a secure single server environment for pre-production and/or production environments.

“Implementation” means the establishment of the AWS Microsoft (MS) Windows & MS SQL Server environment, initial implementation and basic client configurations.

“Malicious Code” means code that is designed or intended to disable or impede the normal operation of, or provide unauthorized access to, networks, systems, software other than as intended by the Comply Software (for example, as part of some of Comply’s security products).

“Product Specific Terms” means additional product related terms applicable to the Comply Software included in the order form.

“Services” means the Comply services including Implementation, Administration Support, Support and Software Maintenance, and Hosting

“Software” means the Comply computer programs; E-Forms, Admin, ComplyPro, ComplyLite including Upgrades, firmware and applicable Documentation.

“Support and Software Maintenance” means technical support from Comply including software release activity, IT technical support, back-up maintenance, services optimization, application support via the Comply’s support helpdesk including issue resolution, administrator usability issues, general application usability support.

“Upgrades” means all updates, upgrades, bug fixes, error corrections, enhancements and other modifications to the Software.

“Usage Term” means the period commencing on the Delivery Date and continuing until expiration or termination of the Entitlement, during which period You have the right to use the applicable Comply Software.

“User” means the individuals (including contractors or employees) permitted to access and use the Comply Software on Your behalf as part of Your Entitlement.

“You” means the individual or legal entity end user of the Comply Software.

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