SET OUT BELOW ARE THE TERMS AND CONDITIONS UNDER WHICH YOU ARE PERMITTED TO USE THE APPLICABLE KBKG (“KBKG”) SOFTWARE (“SOFTWARE”). PLEASE READ THIS INFORMATION CAREFULLY. BY ACCESSING AND/OR USING THE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THESE TERMS AND CONDITIONS ON BEHALF OF YOURSELF AND THE ENTITY, IF APPLICABLE, WITH WHOM YOU ARE EMPLOYED OR REPRESENT AND ON WHOSE BEHALF YOU ARE AGREEING. IF YOU ARE AGREEING ON BEHALF OF AN ENTITY, YOU WARRANT THAT YOU ARE AN AUTHORIZED REPRESENTATIVE OF SUCH ENTITY WITH AUTHORIZATION TO BIND SUCH ENTITY TO THIS AGREEMENT. THIS DOCUMENT CONSTITUTES A LEGAL AGREEMENT BETWEEN KBKG AND YOU AND SUCH ENTITY, IF APPLICABLE, (COLLECTIVELY REFERRED TO AS “YOU” OR “YOUR”) GOVERNING ALL USE OF THE SOFTWARE (“AGREEMENT”). YOU WARRANT THAT YOUR ACCESS AND/OR USE OF THE SOFTWARE EVIDENCES YOUR INTENTION TO LEGALLY BIND YOURSELF AND YOUR ENTITY, IF APPLICABLE, AND SUCH ACCESS AND/OR USE IS INTENDED AS A SYMBOL OF YOUR SIGNATURE. PLEASE PRINT AND RETAIN A COPY OF THIS AGREEMENT IN YOUR FILES FOR YOUR FUTURE REFERENCE. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT ACCESS AND/OR USE THE SOFTWARE.
Section 1. Grant.
- (a) The Software is one of KBKG’s online tax preparation products and/or calculator(s) software, including, but not limited to, the Residential Cost Segregator™, 481 (a) Adjustment Software, Partial Disposition Calculator, TPR Package, and/or the Cost Segregation Savings Calculator. The Residential Cost Segregator™ allows the user to complete a cost segregation report for residential rental properties up to six (6) units with a depreciable tax basis of $500,000 or less. The 481 (a) Adjustment Software aids in properly documenting and calculating IRC §481(a) adjustments required for IRS Form 3115, Change in Accounting Method. The PPI Component Disposition Calculator is an online tool that helps quantify retirement loss deductions for building components. The TPR Package is a compilation of templates, checklists, sample deliverables, and guidelines that user can utilize to understand and implement the Tangible Property Regulations. The Cost Segregation Savings Calculator allows the user to enter building details and instantly receive a detailed report showing potential tax savings from a cost segregation study. KBKG grants You a personal, limited, non-exclusive, non-transferrable, royalty-free license to access and use the Software (one or more based on the specific Software You elect to access) only on Your internal computer system, along with any modifications and upgrades thereof, if any, and any related manuals, documents, user guides, and/or other items (collectively hereinafter the “Materials”), provided by or on behalf of KBKG, solely for the purpose of Your use of the Software and for no other purpose. For purposes of this Agreement, the term Software includes the physical media, if any, on which the Software is provided to You. This Agreement does not allow You to use the Software on any computer that You don’t own and/or control.
- (b) For purposes of this Agreement, the term Software shall include all software, sample codes, screens, templates, designs, files, instructions, specifications, and other materials, if any, provided to You by KBKG in connection with the Software.
- (c) If You are required to make any programming changes in Your internal hardware and software systems to enable You to access, use, and/or cease use of the Software, or any modifications or upgrade(s) thereof, such changes shall be at Your sole cost and expense and at Your sole risk. Your failure to make any such changes or upgrades as required by KBKG may result in You being unable to use or continue using the Software. KBKG may modify, upgrade, and terminate the use of the Software at any time for any reason.
Section 2. Intellectual Property Rights.
- (a) You acknowledge that KBKG holds and retains, other than as explicitly provided in this Agreement, all worldwide rights, title, and interests, including without limitation, copyright and patent rights, in and to the Software, the Marks (as defined herein) and the Materials. You acknowledge that KBKG is not selling or otherwise transferring any title in the Software, the Marks, and/or the Materials to You.
- (b) You may not copy, modify, adapt, or reproduce the Software, the Marks, and/or the Materials. You may not translate, decompile, reverse engineer, or disassemble the Software or the Materials in any event, except to the extent that this limitation is prohibited by applicable law.
- (c) You may not transfer or transmit, in whole or in part, the Software or the Materials or KBKG trademarks and service marks as defined below, to any third party without KBKG’s explicit advance written approval.
- (d) KBKG grants You a personal, limited, non-exclusive, non-transferrable, royalty-free license to use and display the KBKG word and logo trademarks and service marks (collectively hereinafter the “Marks”) only in the form as provided and presented by KBKG in the Software solely in connection with Your use of the Software as authorized herein, provided that You comply with all provisions of this Agreement regarding the manner in which the Marks may be used. You may not use the Marks for any other purpose. Without in any way revising or limiting the foregoing, You may not remove or alter in any way any Mark, including, without limitation, distorting, animating or changing the color, font, or proportions of any Mark, or combining it with any other name, mark, or logo.
- (e) You acknowledge that KBKG holds and retains all worldwide rights, title, and interest in and to the Marks, and that all use of the Marks by You shall inure to the benefit of KBKG. You further acknowledge and agree that You will not claim, in whole or in part, any rights in the Marks, and will do nothing to impair, in any way, the Marks or KBKG’s rights in the Marks. You may not use the Marks in any manner that is likely to cause confusion, mistake, or deception regarding whether KBKG sponsors or endorses Your use of the Software or whether You or Your use of the Software is affiliated, associated, or connected with KBKG. You may not use the Marks to advertise, sell, market, or otherwise distribute any products or services.
- (f) In no event may the Software and/or the Marks be used in such a way, that in KBKG’s judgement in its sole discretion, would damage KBKG’s goodwill. In the event that KBKG, in its sole judgement, believes that any of Your uses of the Software or the Marks violate this provision, KBKG reserves the right to terminate this Agreement, or to notify You and You agree to comply with this provision.
Section 3. Use and Compliance.
- (a) You agree to follow the instructions provided from time to time with the Software, and/or in any Materials which may be provided with the Software, for the access use, and cessation of use of the Software, the Marks, the Materials, and KBKG services. KBKG may, from time to time and at its sole option and discretion, by whatever means make available updates, bug-fixes, patches, upgrades, and/or other modifications to the Software, the Marks, and/or the Materials.
- (b) In order to access the Software, You must obtain access to the Internet and pay any one time and/or ongoing service fees associated with such access.
- (c) You acknowledge that You will not use the Software in such a manner that adversely affects the functionality of KBKG’s services.
- (d) You acknowledge that this Agreement does not include, and KBKG is not obligated to provide, any integration services, technical support, updates, upgrades, bug-fixes, patches, and/or other modifications to the Software, unless KBKG elects to in its sole discretion.
- (e) KBKG may, in its sole discretion, provide limited technical support via a Q&A technical forum which allows users to submit technical questions about KBKG’s areas of expertise and/or the Software. (collectively hereinafter “Limited Technical Support Services”) with respect to Your access and use of the Software.
- (f) If You are a business or organization, upon request from KBKG, You must provide information requested by KBKG concerning compliance of Your use of the Software to the terms of this Agreement.
- (g) All rights to use the Software are granted on condition that such rights are forfeited if You fail to comply with the terms of this Agreement.
- (h) Consent to Use of Data: You agree that KBKG may collect and use technical data and related information—including but not limited to technical information about your device, system and application software, and peripherals—that is gathered periodically to facilitate the provision of software updates, product support, and other services to You (if any) related to the Software. KBKG may use this information, as long as it is in a form that does not personally identify You, to improve its products or to provide services or technologies to You.
Section 4. Termination and Transfer.
- (a) This Agreement is effective until terminated by either You or KBKG. This Agreement will terminate independently without notice if You fail to comply with any provision of this Agreement or any instructions regarding the Software, the Marks, the Materials and/or the Limited Technical Support Services, if any.
- (b) Upon termination for any reason, You must cease all use of the Software, the Marks, the Materials, and the Limited Technical Support Services, if any, and return to KBKG all Software, Marks, and all Materials provided to You in connection with the Software and all copies thereof.
- (c) KBKG reserves the right to unilaterally terminate this Agreement and the use of the Software, the Marks, the Materials, and/or the Limited Technical Support Services, if any, at any time and for any reason.
- (d) Rent, lease, lend, sale, redistribution, sublicense or any other temporary or permanent transfer of rights given by this Agreement is prohibited unless explicitly approved by KBKG in advance in writing. Use of the Software, Marks, the Materials, and/or Limited Technical Support Services, if any, by Your subcontractors requires a separate license given directly by KBKG to those subcontractors.
- (e) Transfer of the rights is allowed only after notifying KBKG in writing about such proposed transfer and on a permanent basis provided that You don't possess any copies of the Software received under the terms of this Agreement if such proposed transfer is approved by KBKG in advance in writing in its sole discretion and under KBKG’s then current terms.
Section 5. Payment and Invoice Adjustments.
You are solely responsible for payment of any fees or costs generated through Your use of the Software. Generally, all fees and charges for the Software are nonrefundable and there are no refunds or credits for partially used periods. However, under the laws applicable in Your jurisdiction, You may qualify for a refund if requested during a short period of time after the beginning of the subscription for the Software. By accessing and/or using the Software, You agree that You are required to pay the one-time one (1) hour or twenty-four (24) hour access fee or subscription fee, as applicable, and as indicated during the Software registration and access process.
Section 6. Disclaimer of Warranty.
- (a) The Software, Marks, Materials, and any Limited Technical Support Services are provided by KBKG 'As Is' and at Your sole risk.
- (b) YOU ACKNOWLEDGE AND AGREE THAT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, KBKG DISCLAIMS ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, AND NON-INFRINGEMENT, WITH REGARD TO THE SOFTWARE, MARKS, MATERIALS, AND THE PROVISION OF OR FAILURE TO PROVIDE ANY LIMITED TECHNICAL SUPPORT SERVICES. KBKG DOES NOT WARRANT THAT THE SOFTWARE, MARK, MATERIALS, AND/OR LIMITED TECHNICAL SUPPORT SERVICES, IF ANY, WILL BE ERROR FREE OR WILL OPERATE WITHOUT INTERRUPTION OR MEET ALL OR ANY OF YOUR REQUIREMENTS, OR THAT ANY DEFECTS IN THE SOFTWARE, MARKS, MATERIALS, AND/OR LIMITED TECHNICAL SUPPORT SERVICES, IF ANY, WILL BE CORRECTED. FURTHERMORE, KBKG DOES NOT WARRANT NOR MAKE ANY REPRESENTATION REGARDING THE RESULTS OF ANY LIMITED TECHNICAL SUPPORT SERVICES PROVIDED OR YOUR USE OF THE SOFTWARE, MARKS, AND/OR MATERIALS IN TERMS OF CAPABILITY, QUALITY, CONTENT, COMPLETENESS, LEGALITY, OPERABILITY, CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. WE SPECIFICALLY DISCLAIM ANY RESPONSIBILITY FOR THE DELETION, FAILURE TO STORE, MISDELIVERY, OR UNTIMELY DELIVERY OF ANY MATERIAL OR INFORMATION IN RESPECT OF THE SOFTWARE OR USE THEREOF. THE SOFTWARE IS NOT INTENDED TO PROVIDE LEGAL, TAX, INVESTMENT, OR ACCOUNTING ADVICE AND SHOULD NOT BE RELIED UPON IN THAT REGARD (YOUR FINANCIAL AND TAX SITUATION MAY BE UNIQUE AND THEREFORE YOU SHOULD ALWAYS CONSULT A TAX ADVISOR). THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE, MARKS, MATERIALS, AND/OR LIMITED TECHNICAL SUPPORT SERVICES, IF ANY, REMAINS WITH YOU. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHERS, WHICH VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION. NO WRITTEN OR ORAL INFORMATION, REPRESENTATION OR ADVICE GIVEN BY KBKG OR AN AUTHORIZED REPRESENTATIVE OF KBKG SHALL CREATE A WARRANTY.
Section 7. Remedies.
In the event of a breach of the express warranty provided above, KBKG will replace the Software and/or the Materials with another copy of the Software and/or the Materials, provided that You cease access to the defective copy of the Software and/or the Materials to, or notify KBKG in writing, within thirty (30) days of the date You access them. You acknowledge that this Section sets forth Your SOLE AND EXCLUSIVE remedy and KBKG’s SOLE AND EXCLUSIVE liability, for breach of warranty or any other duty.
Section 8. Limitation of Liability.
TO THE EXTENT NOT PROHIBITED BY LAW, UNDER NO CIRCUMSTANCES AND IN NO EVENT, INCLUDING, BUT NOT LIMITED TO NEGLIGENCE, SHALL KBKG NOR ANY OF ITS AFFILIATED ENTITIES, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, REPRESENTATIVES, ADVERTISERS, SERVICE PROVIDERS, AND SUPPLIERS BE LIABLE FOR ANY DIRECT, INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR OTHER DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, PROCUREMENT OF SUBSITUTUE GOODS OR SERVICES, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF USE, BUSINESS INTERRUPTION, DAMAGE TO YOUR INTERNAL COMPUTER SYSTEM(S), OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SOFTWARE, MARKS, MATERIALS, AND/OR LIMITED TECHNICAL SUPPORT SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT LIABILITY, PRODUCT LIABILITY, OR OTHERWISE) RESULTING FROM THE ACCESS, USE, OR REMOVAL OF THE SOFTWARE, THE MARKS, AND/OR THE MATERIALS OR RESULTING FROM THE LIMITED TECHNICAL SUPPORT SERVICES, IF ANY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS EXCLUSION OF DAMAGES IS EFFECTIVE EVEN IF THE EXCLUSIVE REMEDY STATED ABOVE FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall KBKG’s total liability to You for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of Fifty Dollars (US$50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
Section 9. Indemnification.
You agree at Your sole cost and expense to indemnify, defend, and hold KBKG, its affiliated entities and their respective successors and assigns, officers, directors, employees, agents, licensors, representatives, advertisers, service providers, and suppliers harmless against any and all claims, demands, suits, actions, losses, damages, costs, fines, judgements, and expenses (including reasonable attorneys' fees) (collectively hereinafter “Claims”), arising out of or relating to Your (a) breach or violation of this Agreement, (b) infringement, misappropriation or any violation of the rights of any other party, (c) violation or non-compliance with any applicable law, rule or regulation, and/or (d) Your access, use, alteration, cessation of use, or export of the Software, Materials, Marks, and/or Limited Technical Support Services, if any (or any component or element thereof). KBKG reserves the right to assume the exclusive defense and control of any claims or actions subject to indemnification by You and all negotiations for its settlement or compromise, and You agree to fully cooperate with KBKG upon KBKG’s request. You may not settle any such Claims involving KBKG or the Software, Materials, Marks, and/or the Limited Technical Support Services, if any, without the explicit advance written consent of KBKG.
Section 10. Controlling Law and Severability.
This Agreement shall be governed by and construed in accordance with the laws of the United States and the State of California, excluding its conflict of laws provision. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or a portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to affect the intent of the parties and the remainder of the provision and this Agreement shall remain in full force and effect. Any cause of action with respect to the Software, the Marks, the Materials, and/or Limited Technical Support Services, if any, provided hereunder must be instituted with one (1) year after the claim or cause of action has risen or be barred and must be brought in a court of competent jurisdiction within California.
Section 11. Notices.
Any notice required or permitted to be given relating to this Agreement shall be given in writing as addressed below by mail, electronic mail, facsimile, or via overnight carrier.
If to KBKG:
If to You:
To the name and address listed in the registration process for the Software or otherwise provided to KBKG in connection with the Software or KBKG may provide notice by general posting to KBKG’s website at https://www.solutions.kbkg.com and/or any other or subsequent URLs. Any such notice shall be deemed effective when posted by KBKG
Section 12. Waiver.
If KBKG fails to give notice to or enforce any right under this Agreement, such failure shall not constitute a waiver of the same, unless reduced to writing and signed by KBKG. The waiver of any provision shall not constitute a waiver of the same or any other provision of this Agreement in the future.
Section 13. Export.
By agreeing to this Agreement and accessing and using the Software and Materials, You acknowledge and agree that You assume all responsibility for compliance with, and are in compliance with all applicable laws and regulations of the United States or the country in which You received the Software regarding export, import, and re-export of the Software or the Materials and any related or underlying information, technology, process, product, or service. As required by the laws of the United States and other countries, You represent and warrant that you: (a) understand that the Software and their components may be subject to export controls under the U.S. Commerce Department’s Export Administration Regulations (“EAR”); (b) are not located in a prohibited destination country under the EAR or U.S. sanctions regulations (subject to change as posted by the United States government); (c) will not export, re-export, or transfer the Software to any prohibited destination, persons or entities on the U.S. Bureau of Industry and Security Denied Parties List or Entity List, or the U.S. Office of Foreign Assets Control list of Specially Designated Nationals and Blocked Persons, or any similar lists maintained by other countries, without the necessary export license(s) or authorizations(s); (d) will not use or transfer the Software for use in connection with any nuclear, chemical or biological weapons, missile technology, or military end-uses where prohibited by an applicable arms embargo, unless authorized by the relevant government agency by regulation or specific license; (e) understand and agree that if You are in the United States and export or transfer the Programs to eligible end users, You will, to the extent required by EAR Section 740.17(e), submit semi-annual reports to the Commerce Department’s Bureau of Industry and Security, which include the name and address (including country) of each transferee; and (f) understand that countries including the United States may restrict the import, use, or export of encryption products (which may include the Software and the components) and agree that You shall be solely responsible for compliance with any such import, use, or export restrictions.
Section 14. Restricted Rights.
The Software and Materials are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. All rights reserved under the copyright laws of the United States.
Section 15. Complete Agreement.
This Agreement constitutes the entire agreement between You and KBKG with respect to the Software, the Marks, the Materials, and Limited Technical Support Services, if any, provided to You by KBKG and supersedes any prior or contemporaneous understandings, representations, statements, or agreements, written or oral, regarding the Software, the Marks, the Materials, and the Limited Technical Support Services, if any, provided to You by KBKG. No amendment to or modification of this Agreement will be binding on KBKG without KBKG’s explicit advance written consent. All provisions of this Agreement that by their nature are intended to survive termination or expiration shall so survive. KBKG may modify this Agreement at any time for any reason.
Section 16. Acknowledgement and Agreement.
I acknowledge my agreement to this Agreement as set forth out above on behalf of myself and the entity, if any, with whom I am employed or represent, and further acknowledge that I am the same person identified on the registration screen and that the information provided in the registration screen or otherwise provided to KBKG in connection with the Software is true and accurate.