This EULA is supplemental to the Agreement and shall apply in all instances where you access and use the Application (defined below) in the course of the delivery of our Services to you. Your access and use of the Application shall be deemed acceptance of the terms of this EULA.

Nothing in this EULA supersedes or replaces any other terms of the Agreement. Words, definitions and expressions used in this EULA shall have the same meanings as defined in the Agreement unless separately defined here.

1 Terminology

1.1 “Authorised Users” means any of your directors, officers, employees, or staff directly involved in the relevant Services under the Agreement and for whom you have expressly requested access to the Application, and any third parties permitted to access the Application as set forth below, provided always that you accept full responsibility and liability to us for the compliance of such Authorised Users with the terms of this EULA.

1.2 “Authorised Purpose” means your internal business purposes in connection with the Services or such other purpose specified in the Agreement.

1.3 “Application” means Evolute, with functionality more specifically described in the Agreement and shall include any Documentation and/or Enabling Application (where applicable).

1.4 "Client Content” means all data, documents or any other content posted on the Application by you or your Authorised Users.

1.5 “Documentation” means any documentation or material (in any format or medium) that describes the functional, technical, design or performance characteristics of the Application to aid in the use and operation of the Application, and all modifications to such documents or materials that are made by, or on behalf of us from time to time, and, in any event, the information that is reasonably necessary to enable a reasonable person to use and access the Application.

1.6 “KPMG Network Entities” means each of KPMG International Limited, KPMG International Cooperative and KPMG International Services Limited and each of their respective subsidiaries.

1.7 “License Fees” means the fees for the use of the Application, maintenance fees and fees for hosting services, as specified in the Agreement (if any).

1.8 “Term” means the duration of the Service(s) for which the license to the Application is granted to you.

1.9 “Third Party Applications” means applications and other technology included in or among the Application that are licensed from third parties.

1.10 “Update” means any customisations, patches, enhancements, updates, upgrades, new releases, and other modifications of the Application, but excluding new versions of the Application and successor products to the Application.

1.11 “You”, “you” or “your” shall also refer to your Authorised Users.

2 Grant of License

2.1 Subject to compliance of the terms of this EULA and payment of License Fees by you (if any), we hereby grant you a non-exclusive, royalty-free, limited, non-transferable, non-sub-licensable and revocable license to use the Application for the Authorized Purpose during the Term for which you would require access to the Application (“License”).

2.2 We will host the Application on servers operated by a third party.  We will perform all maintenance and support necessary to operate the environment in which we host the Application (“Hosting Services”). 

2.3 The Application may permit you to access other applications that you may have licensed separately from us or from other KPMG Member Firms, and your use and access to these applications are subject to the terms of your separate licence to such applications rather than this EULA.

3 License Fees

3.1 The payment of the License Fees (if any) for the use of the Application shall be billed in accordance with the terms of the Agreement.

4 Access and Termination

4.1 Authorised Users may access and use the Application solely for the Authorised Purpose.

4.2 Unless otherwise agreed in the Agreement, this EULA shall become effective upon your date of first use of the Application.

4.3 Your License shall automatically terminate at the earlier of the following events, (a) the completion or termination of the Services under the Agreement; or (b) the termination of the Agreement; or (c) the expiry of the Agreement; or (d) in such manner as specified in this EULA.

4.4 We may limit or terminate your use of the Application on thirty (30) days advance written notice to you, or otherwise upon notice to you as may be reasonably necessary to comply with our license to Third Party Applications.  We may suspend or terminate access to the Application as reasonably necessary to protect the integrity of the Application or otherwise at any time for reasons out of our control.  The Application may permit Client and Authorized Users to access other applications that Client has licensed separately from KPMG or from other Member Firms, and use and access to these applications are subject to the terms of the Client’s separate licence to such applications rather than these Terms. We shall not be liable for any damage, loss or expense howsoever caused arising out of the termination, suspension or modification of the Application.

5 Your Responsibilities

5.1 Your Authorised Users are responsible for ensuring that the reviewing and approval processes in relation to the use of the Application remain independent;

5.2 You are solely responsible for meeting statutory deadlines.

5.3 You shall provide the following:

5.3.1 your Authorised Users adequate network bandwidth and speed for accessing the Application; and

5.3.2 notify us immediately of any agreement related to the acquisition of your business, or change in control of your ownership, including affiliates or related entities. You shall provide us with the name of the acquiring entity as soon as possible, at least within five business days of the execution of the agreement and in all cases before the closing the acquisition agreement.

5.4 You shall not and/or permit another individual, person or entity, to:

5.4.1 take any action that is likely to adversely affect the use or functionality of the Application;

5.4.2 use any third-party software included in the Application on a stand-alone basis, or use the Application in combination with any third-party intellectual property rights;

5.4.3 attempt to access areas of any portal or systems or network on which the Application is hosted or via which the Application is accessed, to which the Licensee has not been given access;

5.4.4 modify, disable, or compromise the integrity or performance of the Application or any related systems, networks or data, including but not limited to probing, scanning or testing the vulnerability of any system or network that hosts the Application; or

5.4.5 overwhelm or attempt to overwhelm any infrastructure over which the Application is provided.

5.5 You agree to reimburse us for any Costs, losses or damages suffered from claims brought against us as a result of, arising from or in connection with your breach of this EULA.

6 Third Party Links and Applications

6.1 The Application may permit users to post links to third party Web sites (“Third Party Websites”) or third party content (“Third Party Content”). The Application may also permit users to access and use third party applications (“Third Party Applications”). Such Third Party Content and Third Party Applications are licensed to you by the relevant third party licensors (“Third Party Licensors”) and not by KPMG, under licence agreements between you and the Third Party Licensors. KPMG is not a party to such licence agreements.

6.2 The Third Party Licensor of any Third Party Content or Third Party Application, and not us, is solely responsible for its content, warranties, and claims that you may have related to such Third Party Content or Third Party Application. Third Party Licensors, and not us, are responsible for providing maintenance and support for Third Party Websites, Third Party Content and Third Party Applications.

6.3 We make no representations or warranties regarding, and accept no liability or responsibility for, any Third Party Websites, Third Party Content or Third Party Applications, including freedom from viruses, damage to property, loss of data interruption to access, or fitness of such Third Party Websites, Third Party Content or Third Party Applications for any purpose.

6.4 The inclusion of links to Third Party Websites, Third Party Content or Third Party Applications does not constitute an endorsement or adoption by us of such Third Party Websites, Third Party Content or Third Party Applications.

7 Availability

7.1 The Application is accessible through a Web browser.  You shall use the latest supported version of a Web browser to access the Application. 

7.2 As with any Internet-based product, technical factors such as bandwidth, network configurations and browser settings can affect the Application’s performance and accessibility.  While we use commercially reasonable efforts to make the Application available on a 24/7 basis, the Application may be temporarily unavailable due to technology interruptions, for maintenance or other reasons.  Accordingly, we do not make any representation or warranty regarding the availability or accessibility of the Application by any Authorized User.

7.3 Use of the Application or functionality may require installation of certain generally available third party plugins and we disclaim any and all warranties regarding such plugins.

8 Proprietary Rights

8.1 The Application (and its source code) are not Deliverables or work products, but is only made available pursuant to the terms of this EULA. 

8.2 You acknowledge and agree that: (a) as between the parties, the Application is the exclusive property of KPMG and its licensors; (b) except for the limited permission to access and use the Application as granted herein, you acquire no right or interest of any kind in or to the Application. 

8.3 You may not (i) license, sell or otherwise commercialize or exploit the Application, (ii) disassemble, reverse engineer or in any other way modify the Application or (iii) attempt to access other applications or areas of the Application or the infrastructure over which the Application is provided, to which you have not been granted permission. In no event shall we be obliged to disclose source code of the Application.

8.4 You may not register (a) any domain name similar to that of us; (b) any domain name that may contain reference to KPMG or its domain name or (c) cause a person to believe that a domain name owned or registered or used by you or any person on its behalf or instructions, is a property of or registered with KPMG for us or any third party’s commercial purpose or benefit.

8.5 We shall reimburse you against any loss you incur by reason of any claim that its use or possession of the Application in accordance with these terms infringes the intellectual property rights in Singapore of any third party not connected to us except to the extent that: (a) you prejudice our defence of such a claim; (b) such infringement is caused by or contributed to by your use of the Application other than in accordance with this EULA; (c) such infringement is caused by or contributed to by your acts or omissions (other than the use of the Application in accordance with this EULA); or (d) you fail to use any modified or replacement Application supplied or offered to be supplied, where the relevant claim would have been avoided by doing so.

8.6 As a condition precedent, if you become aware of any claim or likely claim of infringement as contemplated by the clause above, you shall: (a) promptly notify us in writing of the details of the claim; (b) give us all reasonable assistance with such claim (at our reasonable cost); and (c) give us sole conduct and control of the claim and its settlement or resolution.

8.7 We may, at our expense, modify or replace all or part of the Application to avoid infringement or claims of infringement, or, if we, in our sole discretion, determine that no modification or replacement is appropriate, then we may terminate this license and refund to you a pro-rata proportion of the License Fees for the number of days remaining of the period for which you have paid at the time of such termination.

8.8 This clause states our entire liability for infringement or alleged infringement of any third party intellectual property rights by the Application.

9 Restricted to Authorized Users

9.1 You agree not to provide access to the Application or any component thereof to any person other than Authorised Users.

9.2 Your agents, contractors, consultants or other third parties may be granted access to the Application only upon your written request and KPMG’s express permission, which will not be unreasonably withheld.

9.3 Any third parties that KPMG permits to access the Application shall be treated as Authorized Users. You shall be responsible for all Authorised Users’ compliance with these Terms. You shall be liable for any acts or omissions of your Authorised Users as if those were your own acts or omissions.

10 Client Content

10.1 Except for the permissions granted herein or in the Agreement, we acquire no right or interest in any Client Content.

10.2 You are solely responsible for all Client Content posted on the Application by your Authorized Users, including that all such Client Content complies with all applicable laws and regulations and that the Client Content will not infringe the intellectual property or data privacy rights of any third party.

10.3 You grant to us, other KPMG Member Firms and their service providers, including KPMG Network Entities, an irrevocable, transferrable, sub-licensable, limited to the Term, fully-paid and royalty free right and license to use Client Content posted on the Application and other applications separately licensed by you that connect to the Application for purposes of providing the Application and Services to you, and to improve the performance of our Services, including through the Application or the use of third party tools. When used in this manner, you agree that we shall not have breached our confidentiality obligations to you.

10.4 You acknowledge and agree that content submitted by you or on your behalf to the Application and output generated by you or on your behalf using the Application may be aggregated with content provided by you and/or your Affiliates or generated using the Application or other applications licensed to you and/or your Affiliates under other agreements with us or other KPMG Member Firms for the use of the Application or other applications or for other services, in each case, for the purposes of providing you and your Affiliates with key analytics across your tax portfolio or the provision of such other services. No other third party will have access to the Client’s Content.

10.5 You agree that we may remove any Client Content from the Application, in the event of a threatened breach of law or third-party rights.

11 Login Credentials

11.1 You are responsible for taking appropriate measures to prevent unauthorized users from gaining access to the Application, including not disclosing or sharing your user names or passwords. It is your responsibility to promptly notify us if you become aware of any Authorised User who should no longer have access to the Application.

12 Viruses and Other Download Consequences

12.1 While we exercise commercially reasonable efforts to protect the Application from computer viruses, we do not guarantee that the Application will be free from all viruses, and are not responsible for any damage caused by viruses or other malicious activities of third parties. You are advised to use appropriate anti-virus software.

13 Data and Document Retention

13.1 The Application is not intended for use as a document retention system, and should not be regarded as systems of record. You are solely responsible for maintaining copies of and replacing any Client Content you store or upload using the Application.

13.2 You should download from the Application any deliverables and other records you wish to retain for your own records. Deliverables and other records uploaded to the Application will remain available for a reasonable period of time after the Deliverables are provided.

13.3 If agreed in the Agreement, we will provide you with a copy of the Deliverables and records stored in the Application relating to the Services in a KPMG-defined format.

14 Third Party Services

14.1 You acknowledge and agree that we use third party service providers to provide at our direction administrative, clerical, analytical, and hosting services to KPMG. These third parties may in the performance of such services have access to Client Content.

15 System Changes

15.1 In its sole discretion, we or our licensors may deploy enhancements to the Application. We shall inform you of important changes in functionality that may affect your use of the Application.

15.2 Unless specifically stated otherwise, we are under no obligation to provide Updates to the Application for future changes in law, rule or regulation or for any other reason.

16 Use and Transmission of Data

16.1 Information posted on the Application will be stored in the pre-defined locations as stated in the Agreement. Your information is hosted in Azure AD, a global service and will be replicated and stored globally. This means the personal data processed for purposes of user authentication may be processed globally, including in the U.S.

16.2 We have technical, legal and/or other safeguards, measures and controls in place to protect such information from unauthorized access, disclosure or use.

16.3 You represent to KPMG that you have obtained lawfully-sufficient consent or other appropriate permission, if required by any applicable law or regulations, from your employees, customers or any other relevant individuals for such transfer of data and use in providing the Application and Services in connection with the Agreement , and that such transfer and use does not violate any applicable law or regulation.

17 Export Controls

17.1 You represent and warrant that you are not (i) listed in any economic, financial, or trade sanctions related list of designated parties administered or enforced by the United Kingdom (including OFSI, ECJU, HMRC, Her Majesty’s Treasury, the Department of Trade and FCDO), the United States government (including OFAC or the U.S. Departments of the Treasury, State and Commerce), the United Nations or its Security Council, the European Union, the government of Switzerland (including SECO), or the government of Canada (including Public Global Affairs Canada) (collectively the “Applicable Sanctions Laws”); or (ii) owned or controlled by parties described in (i).

17.2 You represent and warrant that you will not provide access to the Application to users in the Russian Federation for services to the Russian Federation that have been banned by the US, UK, EU and/or Canada.

17.3 Further, you represent and warrant that you agree to use the Application in compliance with United Kingdom, United States, and European Union, and Swiss laws and regulations applicable to the import, export, and reexport of the Application (“Applicable Export Control Laws”). In particular, the Application may not, directly or indirectly, be exported or re-exported into, or from, jurisdictions subject to comprehensive sanctions by the UK, US, EU, and Switzerland.

17.4 Further, you agree not to use the Application (a) in support of any end use that is restricted under Applicable Export Control Laws, including but not limited to nuclear proliferation or activities relating to chemical, biological or other weapons of mass destruction or missile or rocket systems for their delivery or (b) to any military end user or for any military end use in contravention of Applicable Export Control Laws.

17.5 You shall immediately notify us upon you determining or having reason to believe that you are sanctioned under Applicable Sanctions Laws or can no longer make the above representations and warranties.

17.6 We may suspend or terminate access to the Application if we conclude, in our absolute discretion, that providing access to the Application would cause a violation of Applicable Sanctions Laws or Applicable Export Control Laws by us or other KPMG Member Firms or KPMG Network Entities, including those described above.

18 Warranty

18.1 The Application is provided on an “as is” and “as available” basis and we do not warrant, guarantee or make any representations (whether express or implied, including but not limited to) that: (a) the Application or any functions or the Hosting Services associated therewith will be uninterrupted or error-free, or that defects will be corrected or that the software and the server is and will be free of all viruses and/or other harmful elements or any unauthorized code or other destructive, malicious or corrupting code, program or macros; (b) the Application is of a satisfactory quality or of its merchantability or fitness for a particular purpose; (c) the Application will meet your requirements or will fit your purposes, whether or not such requirements or purposes have been informed to you or otherwise; (d) Your use of the Application will result in compliance, fulfilment or conformity with the applicable laws, rules, regulations, requirements or guidelines of any governmental agency; (e) whilst we have designed the Application with information security in mind and have taken steps to safeguard the security of the Application by way of the measures described in the online privacy statement, we cannot guarantee that the Application is invulnerable to hacking or other unauthorized access by third parties. You also acknowledge that transmission of information over the internet is not entirely secure and there is always the possibility of unauthorized interception by third parties or corruption or loss of data; (f) that access to the Application may be suspended, limited, denied or disabled at any time and that Client Content may not always be recoverable; and (g) all other warranties, conditions, terms, undertakings and obligations that might otherwise be implied into these terms are excluded to the fullest extent permitted by law.

19 Limitation of Liability

19.1 You agree that our total aggregate liability for any and all claims, costs, losses or damages incurred or suffered by you in any way caused by or arising from your use of the Application in connection with the relevant Service shall be subject to the limitation of our liability for such Service as agreed between the parties in the Agreement.

19.2 To the extent permitted by applicable law, neither us nor any KPMG Persons shall be responsible or liable to you whether in contract (including under any indemnity or for wilful default), in tort (including negligence), under any applicable rules or otherwise for or in respect of any loss of business or profit, loss of savings or anticipated savings, loss of revenue, loss of contract or opportunity, loss of goodwill, loss of management time, loss or corruption of data and the costs of recovering or reconstituting any loss or corrupted data, any loss or damage to any of your systems or servers (including peripherals, software installed or data stored thereon) including due to any computer virus or other destructive, malicious or corrupting code, program or macros that may affect the system or server or any other property of yours or any indirect or consequential losses of whatever nature or a breach of this EULA caused by your failure or delay to comply with your obligations.