©2019 by Tax Gnome Ltd

Tax Gnome Terms & Conditions
 

THESE TAX GNOME TERMS & CONDITIONS (“Agreement” or “Terms”) COVER ALL SUBSCRIPTIONS TO TAX GNOME LIMITED.
 

BY CLICKING IN THE BOX BELOW INDICATING YOUR ACCEPTANCE, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT 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, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES.
 

IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
 

You may not subscribe to the Services if you are Tax Gnome’s direct or indirect competitor, except with Tax Gnome’s prior written consent. In addition, you may not subscribe to the Services for the purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
 

Tax Gnome reserves the right to change these Terms or any Services at any time, effective upon the posting of modified Terms or Services on the Website, and Tax Gnome will make every effort to communicate these changes to you via email or notification via the Website. It is likely that the Terms will change over time.  It is your obligation to ensure that you have read, understood and agree to the most recent Terms available on the Website. 
 

This Agreement is effective between You and Tax Gnome from the date of first executing the tick box to subscribe to our Services.
 

1. DEFINITION OF TERMS USED

“Agreement” or “Terms” refers to these Tax Gnome Terms and Conditions.

“Billing Contact” refers to your nominated contact entity and address for billing purposes. 

“Confidential Information” includes all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, including the Services, but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other party.

“Data”refers to any data inputted with your authority into the Website.

  1. “Intellectual Property Right”
    “Intellectual Property” means all intellectual property rights of Tax Gnome® whether in relation to the Site or Services or otherwise and includes all or any of the following:

    1. the Trade Marks of Tax Gnome® whether in relation to the Site or Services or otherwise;

    2. the Trade Name or any other trade name under which Tax Gnome® sells or distributes its Services or the provision of Tax Gnome® Services;

    3. any present or future patents of Tax Gnome® which relate to the Tax Gnome® Site or Services or their manufacture or assembly and application for the grant of any such patents;

    4. the technical and other information or expertise devised, developed or acquired by Tax Gnome® or its employees or other applied in the development, servicing and sale of the Site or Services and in the management and operation of the Business;

    5. copyright of Tax Gnome® in any written material, plans, designs, logos, slogans, labels, insignia or other work relating to the manufacture, merchandising, displaying, promotion and selling of the Site or Services;

    6. designs, whether or not registered or protected by copyright devised or acquired by Tax Gnome® and applied to the Business, the Site or Services.

“Invited User” means any person or entity, other than the Subscriber, that uses the Services with the authorisation of the Subscriber from time to time.

“Service” means the tax calculation service made available (as may be changed or updated from time to time by Tax Gnome) via the Website.

“Subscriber” means the person who subscribes to the Services and, where the context permits, includes any entity on whose behalf that person registers to use the Services and is permitted to do so under this Agreement.

“Subscription Fee” refers to the monthly or annual fee (excluding any taxes and duties) and any applicable one-off service fees payable in accordance with the fee schedule set out on the Website and as agreed when you checked the tick box subscribing to our Services.

“Tax Gnome” means Tax Gnome Limited which is registered in New Zealand, and all current and future global subsidiaries of Tax Gnome Limited.

“Website” means the Internet site at the domain www.taxgnome.co.nz and www.taxgnome.nz, www.taxgnome.com  or any other site operated by Tax Gnome.

“You” means the Subscriber, and where the context permits, an Invited User. “Your” has a corresponding meaning.

“Your Organisations” means an organisation that you have added to the Services or that have been added with Your authority or as a result of your use of the Services.

Any reference to “includes” or “including” is on a without limitation basis.

2. END USER LICENSE AGREEMENT (USE OF SOFTWARE)

Tax Gnome grants you the right to subscribe and use the Services via the Website with the particular Invited User roles available to you according to your subscription type, as per your acceptance of our services (through checking the Tick box subscribing to our services). This right is non-exclusive, non-transferable, and limited by and subject to this Agreement. You acknowledge and agree that, subject to any applicable written agreement between the Subscriber and the Invited Users, or any other applicable laws:

  1. the Subscriber determines who is an Invited User and what level of user role that Invited User has;

  2. the Subscriber is responsible for all Invited Users’ use of the Service;

  3. the Subscriber controls each Invited User’s level of Subscription to the Services at all times and can revoke or change an Invited User’s Subscription, or level of Subscription, at any time and for any reason, in which case that person or entity will cease to be an Invited User or shall have that different level of Subscription, as the case may be; and

  4. if there is any dispute between a Subscriber and an Invited User regarding Subscription to any organisation or Service, the Subscriber shall decide what Subscription or level of Subscription to the relevant Data or Services that Invited User shall have, if any.

3.  INTELLECTUAL PROPERTY

3.1. General:

Title to, and all Intellectual Property Rights in the Services, the Website and any documentation relating to the Services remains the property of Tax Gnome (or its licensors).

3.2. Ownership of Financial Data

Title to, and all Intellectual Property Rights in, the Financial Data remain Your property. However, Your Subscription to the Tax Gnome Service is contingent on full payment of the Tax Gnome Subscription Fees when due and any re-establishment fee due and payable. You grant Tax Gnome a licence to use, copy, transmit, store, and back-up Your information and Data for the purposes of enabling You to access and use the Services and for any other purpose related to provision of Services to You. For the avoidance of doubt, this licence is without limitation to Tax Gnome’s right to create anonymised data compilations or similar works. 

3.3. Backup of Data:

You must maintain copies of all Data inputted into the Service. Tax Gnome adheres to its best practice policies and procedures to prevent data loss, including a daily system data back-up regime, but does not make any guarantees that there will be no loss of Data. Tax Gnome expressly excludes liability for any loss of Data.

3.4. Third-party applications and your Data:

If You enable third-party applications for use in conjunction with the Services, You acknowledge that Tax Gnome may allow the providers of those third-party applications to access Your Data as required for the interoperation of such third-party applications with the Services. Tax Gnome shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by third-party application providers.

3.5. Accuracy of Data:

Your financial transaction data is supplied to Tax Gnome by your accounting software provider with your authority.  You agree and acknowledge that You are responsible for ensuring the accuracy of such Data. Tax Gnome is under no obligation to verify that Data received from your provider is accurate.

3.6 Recovery of Archived Data: or Data Transmitted to Third Party

Tax Gnome does not save and store the calculations made as it is a dynamic calculation. Calculation Information that is sent by way of journal to your accounting services provider can be reversed. If you discontinue your service you will have one calendar month to use Tax Gnome Service to reverse any such journals from your accounting service provider.

4. YOUR OBLIGATIONS

4.1. General:

You must only use the Services and Website for Your own lawful internal business purposes, in accordance with these Terms and any notice sent by Tax Gnome or condition posted on the Website. You may use the Services and Website on behalf of others or in order to provide services to others but if you do so you must ensure that You are authorised to do so and that all persons for whom or to whom services are provided comply with and accept all terms of this Agreement that apply to You.

4.2. Payment for Subscription:

Payment is required by way of monthly credit card, direct debit or as otherwise agreed, at the time of subscribing.  An annual tax invoice will be sent to you at the start of each tax year.  A tax invoice may be requested at any time by emailing your request to support@taxgnome.com.

4.3. Automated accounting data delivered into Your Tax Gnome account:

Where available, automated accounting data feeds are provided to You free of charge. However, Tax Gnome reserves the right to pass on any charges related to the provision of data feeds on a case-by-case basis at Tax Gnome’s sole discretion. Tax Gnome would first inform You via email to indicate what those charges are likely to be (as such charges may vary).

4.4. Subscription Security:

  1. You must ensure that all usernames and passwords required to access the Services are kept secure and confidential. You must immediately notify Tax Gnome of any unauthorised use of Your passwords or any other breach of security and Tax Gnome will reset Your password and You must take all other actions that Tax Gnome reasonably deems necessary to maintain or enhance the security of Tax Gnome’s computing systems and networks and Your Subscription to the Services.

  2. As a condition of these Terms, when Subscribing and using the Services, You must:

    1. not try to undermine the security or integrity of Tax Gnome’s computing systems or networks or, where the Services are hosted by a third party, that third party’s computing systems and networks;

    2. not use, or misuse, the Services in any way which may impair the functionality of the Website used to deliver the Services or impair the ability of any other user to use the Website, including by misusing the Services in a manner that materially exceeds reasonable usage or use patterns over any month or by using the Services in a malicious, fraudulent or unlawful manner;

    3. not attempt to gain unauthorised access to any materials other than those to which You have been given express permission to subscribe to;

    4. not transmit, or input into the Website, any: files that may damage any other person’s computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which You do not have the right to use); and

    5. not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to operate the Website and deliver Services.

4.5. Usage Limitations:

Use of the Services may be subject to limitations, (including monthly transaction volumes, number of users, number of partner companies etc.) You are permitted to make against Tax Gnome’s application programming interface (“API”). Any such limitations may be varied by Tax Gnome in its sole discretion and will be advised from time to time. Any limitations will remain in effect for the duration of your contract with Tax Gnome and any subsequent renewal period.

4.6. Conditions of Use of Communication Tools

As a condition of these Terms, if You use any communication tools available through the Website (such as any support pages, forum, chat room or message centres), You agree only to use such communication tools for lawful and legitimate purposes. You must not use any such communication tool for posting or disseminating any material unrelated to the use of the Services, including: offers of goods or services for sale, unsolicited commercial e-mail, files that may damage any other person’s computing devices or software, content that may be offensive to any other users of the Services or the Website, or material in violation of any law (including material that is protected by copyright or trade secrets which You do not have the right to use).

When You make any communication on the Website, You represent that You are permitted to make such communication. Tax Gnome is under no obligation to ensure that the communications on the Website are legitimate or that they are related only to the use of the Services. As with any other web-based forum, You must exercise caution when using the communication tools available on the Website. However, Tax Gnome does reserve the right to remove any communication at any time in its sole discretion.

4.7. Indemnity:

You indemnify Tax Gnome against: all claims, costs, damage and loss arising from Your breach of any of these Terms or any obligation You may have to Tax Gnome, including any costs relating to the recovery of any Subscription Fees that are due but have not been paid by You.

5. CONFIDENTIALITY AND PRIVACY

5.1 Privacy:

Tax Gnome maintains a privacy policy that sets out the parties’ obligations in respect of personal information. This policy is available at http://prometheus.featureit.co.nz/client/taxgnome/privacy-policy/. Acceptance of these terms means you have accepted the terms of the privacy policy.

5.2. Confidentiality:

Unless the relevant party has the prior written consent of the other or unless required to do so by law:

  1. Each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with these Terms. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by these Terms.

  2. Each party’s obligations under this clause will survive termination of these Terms.

  3. The provisions of clause 4.1 shall not apply to any information which:

    1. is or becomes public knowledge other than by a breach of this clause;

    2. is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;

    3. is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or

    4. is independently developed without Subscription to the Confidential Information.

6. WARRANTIES AND ACKNOWLEDGEMENTS

6.1. Authority:

You warrant that where You have registered to use the Services on behalf of another person, You have the authority to agree to these Terms on behalf of that person and agree that by registering to use the Services You bind the person on whose behalf You act to the performance of any and all obligations that You become subject to by virtue of these Terms, without limiting Your own personal obligations under these Terms.

6.2. Acknowledgement:

You acknowledge that:

  1. You are authorised to use the Services and the Website and to access the information and Data that You input into the Website, including any information or Data input into the Website by any person you have authorised to use the Service. You are also authorised to access the processed information and Data that is made available to You through Your use of the Website and the Services (whether that information and Data is Your own or that of anyone else).

  2. Tax Gnome has no responsibility to any person other than You and nothing in this Agreement confers, or purports to confer, a benefit on any person other than You. If You use the Services or access the Website on behalf of or for the benefit of anyone other than yourself (whether a body corporate or otherwise) you agree that:

    1. You are responsible for ensuring that You have the right to do so;

    2. You are responsible for authorising any person who is given access to information or Data, and

    3. you agree that Tax Gnome has no obligation to provide any person access to such information or Data without Your authorisation and may refer any requests for information to You to address; and

    4. You will indemnify Tax Gnome against any claims or loss relating to:

      1. Tax Gnome’s refusal to provide any person access to Your information or Data in accordance with these Terms; and/or

      2. Tax Gnome’s making available information or Data to any person with Your authorisation.

      3. The provision of, access to, and use of, the Services is on an “as is ” basis and at Your own risk.

    5. Tax Gnome does not warrant that the use of the Services will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the Service, including public telephone services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent Subscription to the Services. Tax Gnome is not in any way responsible for any such interference or prevention of Your Subscription or use of the Services.

    6. Tax Gnome is not Your accountant or tax advisor and use of the Services does not constitute the receipt of accounting or taxation advice. If You have any accounting or taxation questions, please contact an accountant or tax advisor.

    7. It is Your sole responsibility to determine that the Services meet the needs of Your business and are suitable for the purposes for which they are used.
      You remain solely responsible for complying with all applicable accounting, tax and other laws.

    8. It is Your responsibility to check that storage of and Subscription to your Data via the Software and the Website will comply with laws applicable to you (including any laws requiring you to retain records).

6.3. No warranties:

Tax Gnome gives no warranty about the Services. Without limiting the foregoing, Tax Gnome does not warrant that the Services will meet Your requirements or that it will be suitable for any particular purpose. To avoid doubt, all implied conditions or warranties are excluded in so far as is permitted by law, including warranties of merchantability, fitness for purpose, title and non-infringement.

6.4. Consumer guarantees:

You warrant and represent that You are acquiring the right to access and use the Services for the purposes of a business and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the Services, the Website or these Terms.  In particular, the parties acknowledge and agree for the purposes of section 43 of the Consumer Guarantees Act 1993 (“CGA”) and section 5D of the Fair Trading Act 1986 (“FTA”) that: pursuant to this Agreement goods and/or services are being supplied and acquired in trade, they are all in trade, they are contracting out of the provisions of the CGA and sections 9, 12A, 13 and 14(1) of the FTA and it is fair and reasonable that they are bound by this clause 6.4.

7. LIABILITY LIMITATION

7.1

To the maximum extent permitted by law, other than as set out in clause 7.2 below, Tax Gnome excludes all liability and responsibility to You (or any other person) in contract, tort (including negligence), or otherwise, for any loss (including loss of information, Data, profits and savings) or damage resulting, directly or indirectly, from any use of, or reliance on, the Services or Website.

7.2

If You suffer loss or damage as a result of Tax Gnome’s negligence or failure to comply with these Terms, any claim by You against Tax Gnome arising from Tax Gnome’s negligence or failure will be limited in respect of any one incident, or series of connected incidents, to the Subscription Fees paid by You in the previous 3 months.

7.3

If You are not satisfied with the Service, Your sole and exclusive remedy, other than as set out in clause 7.2 above, is to terminate these Terms in accordance with clause 8.

8. TERMINATION OF SERVICE

8.1

When You first sign up for access to the Services You can evaluate the Services for a period of seven days, with no obligation to continue to use the Services. You may elect to terminate your access, on or before the seventh day after the initial subscription date, and discontinue the Services, (in accordance with the refund policy under clause 8.7). If You do not elect to discontinue using the Services in this seven-day timeframe, You will be billed from the day You first subscribed by ticking the box on our Website. If You choose to discontinue using the Services, You must apply in writing to support@Taxgnome.com to remove you from the Services.

8.2. Modifications to subscribed Services

You may not reduce your subscribed Services to a lesser Service within a monthly or annual subscription period (as the case may be).  You may only reduce your subscribed Services to a lesser Service for the following monthly or annual subscription period by providing Tax Gnome with written notice of the reduction at least 10 days prior to the start of the following monthly or annual subscription period. You may change your subscribed Services during a monthly or annual subscription period by adding additional Services or subscription levels. The amount owing on such additions will be added to Your Subscription Fees payable for Your next monthly or annual subscription on a pro-rata basis.  

8.3. No-fault termination:

These Terms will continue for the monthly or annual period covered by the Subscription Fee paid or payable under clause 4.1.  At the end of each monthly or annual subscription period (as the case may be) these Terms will automatically continue for another monthly or annual period and the Subscription Fee for that month or year will continue to be due and payable in advance, unless either party terminates these Terms by giving notice to the other party at least 30 days before the end of the relevant subscription period.  If You terminate these Terms You shall be liable to pay all relevant Subscription Fees on a pro-rata basis for each day of the then current period up to and including the day of termination of these Terms.  Notwithstanding the above, You are not entitled to terminate these Terms within 90 days of the day You first subscribed by ticking the box on our Website other than in accordance with the seven day trial period set out in clause 8.1.

8.4. Breach:

If You:

  1. breach any of these Terms (including by non-payment of any Subscription Fees) and do not remedy the breach within 14 days after receiving notice of the breach if the breach is capable of being remedied;

  2. breach any of these Terms and the breach is not capable of being remedied (which includes any breach of clause 4.2 or any non-payment of Subscription Fees that are more than 30 days overdue); or

  3. You or Your business become insolvent, or Your business goes into liquidation or has a receiver or manager appointed of any of its assets or if You become insolvent, or make any arrangement with Your creditors, or become subject to any similar insolvency event in any jurisdiction, then Tax Gnome may take any or all of the following actions, at its sole discretion:

    1. terminate this Agreement and Your use of the Services and the Website;

    2. suspend, for any definite or indefinite period of time, Your use of the Services and the Website;

    3. suspend or terminate Subscription to all or any Data through the Website; or
      take either of the actions in sub-clauses (i), (ii) and (iii) of this clause 8.4 in respect of any or all other persons whom You have authorised to have Subscription to Your information or Data.

For the avoidance of doubt, if payment of any invoice for Subscription Fees due in relation to any of Your Billing Contacts or any of Your Organisations is not made in full by the relevant due date, Tax Gnome may: suspend or terminate Your use of the Service, the authority for all or any of Your Organisations to use the Service, or Your rights of Subscription to all or any Data.

8.5. Accrued Rights:

Termination of these Terms is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. On termination of this Agreement You will:

  1. remain liable for any accrued charges and amounts which become due for payment before or after termination; and

  2. immediately cease to use the Services and the Website.

8.6. Expiry or termination:

Clauses 3.1, 4, 5, 6, 7, 8 and 10 survive the expiry or termination of these Terms.

8.7. Refund Policy:

If you terminate your subscription within 7 days of first subscribing by ticking the box on our Website you will be entitled to a refund of certain Subscription Fees paid in accordance with clause 8.1 (subject to the provisos set out in this clause 8.7). This includes a full refund of any monthly or annual fees paid. Under no other circumstances is Tax Gnome required to refund any Subscription Fees for any reason whatsoever.  Where you have paid for a Service but not received the Service you will be entitled to a refund only if the refund request is received within 30 days of payment being received. 

9. HELP DESK

9.1. Technical Problems:

In the case of technical problems You must make all reasonable efforts to investigate and diagnose problems before contacting Tax Gnome. If You still need technical help, please check the support provided online by Tax Gnome on the Website or failing that email us at support@Taxgnome.com. Tax Gnome will endeavour to address all queries and requests for assistance received through the Website, by telephone or via email as promptly as reasonably possible, but does not warrant that support will be immediately available.

9.2. Service availability:

Whilst Tax Gnome intends that the Services should be available 24 hours a day, seven days a week, it is possible that on occasions the Services or Website may be unavailable to permit maintenance or other development activity to take place.
If for any reason Tax Gnome has to interrupt the Services for longer periods than Tax Gnome would normally expect, Tax Gnome will use reasonable endeavours to publish in advance details of such activity on the Website.

10. GENERAL

10.1. Entire agreement:

These Terms, together with the Tax Gnome Privacy Policy and the terms of any other notices or instructions given to You under these Terms, supersede and extinguish all prior agreements, representations (whether oral or written), and understandings and constitute the entire agreement between You and Tax Gnome relating to the Services and the other matters dealt with in these Terms.

10.2. Waiver:

A waiver of any breach of any provision in these Terms shall not be effective unless that waiver is in writing and is signed by the party against whom that waiver is claimed.  If either party waives any breach of these Terms, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.

10.3. Delays:

Neither party will be liable for any delay or failure in performance of its obligations under these Terms if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.

10.4. No Assignment:

You may not assign or transfer any rights to any other person without Tax Gnome’s prior written consent.

10.5. Governing law and jurisdiction:

If the information or Data You are accessing using the Services and the Website is solely that of a person who is a tax resident in New Zealand at the time that You accept these terms then New Zealand law governs this Agreement and You submit to the exclusive jurisdiction of the courts of New Zealand for all disputes arising out of or in connection with this Agreement. In all situations this Agreement is governed by the laws of New Zealand and You hereby submit to the exclusive jurisdiction of the courts of New Zealand for all disputes arising out of or in connection with this Agreement.

10.6. Severability:

If any part or provision of these Terms is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder of this Agreement will be binding on the parties.

10.7. Notices:

Any notice given under these Terms by either party to the other must be in writing by email and will be deemed to have been given on transmission unless an electronic error message is received by the sender. Notices to Tax Gnome must be sent to support@Taxgnome.com  or to any other email address notified by email to You by Tax Gnome. Notices to You will be sent to the email address which You provided when setting up Your Subscription to the Service.

10.8. Rights of Third Parties:

A person who is not a party to these Terms has no right to benefit under or to enforce any term of these Terms.