Thank you for choosing to trust CrossLink Tax Tech Solutions, LLC dba uTax (the “Company”) and the products and services offered within the uTax Solutions Platform for the success of your business’s tax filing seasons. As part of your business’s relationship with Company, you must agree to the terms and conditions of this agreement (“Agreement”) on behalf of your business. The business’s full acceptance of this Agreement is required in order to be a customer of Company in connection with its tax year products and services. If you accept this Agreement, you are representing that you have the authority to accept it on behalf of the actual business entity with whom Company has an account (the “Customer”).
1.1. License. The primary software offered by Company is Company-branded tax compliance software (the “Tax Compliance Software”). However, Company may provide Customer with other software, which along with the Tax Compliance Software will be collectively referred to as “Licensed Software.” Licensed Software is licensed on a non-exclusive and non-transferrable basis in a quantity and of the type as specified on the sales order form issued by Company. Company charges a licensing fee to provide access to the Licensed Software it distributes (the "License Fee").
1.2. Software Publisher’s EULA and/or other Agreements. When installing or otherwise accessing the Tax Compliance Software, and certain other Licensed Software, Customer will be required to agree to the Software Publisher’s end user license agreement (the “EULA”), which will provide the primary terms and conditions specific to the use of the Licensed Software. Customer agrees to only use the Licensed Software in full compliance with the terms of the applicable EULA, as further qualified by the terms of this Agreement and the Company sales order form. Customer is further aware that the Software Publisher may require other end-user agreements, depending on the feature, products and services utilizes, to be signed and followed.
1.3. Disclaimer. Customer acknowledges that Company is a value-added reseller of the professional Tax Compliance Software, and as such, Company itself makes no representations or warranties about the performance, availability, or consistency of the Tax Compliance Software. Furthermore, Company disclaims all liability arising out of the performance, availability, or consistency of the Tax Compliance Software. This provision shall not affect Customer’s right to seek remedies available under law and pursuant to the applicable EULA from any third-party company that publishes the Licensed Software (the “Software Publisher”). Company reserves the right to substitute the type of Licensed Software available to Customer year-over-year, so long as any such substitution reasonably provides the same material functionality as the Company branded software that was used by Customer during the prior year. To fully support Customer’s business needs, it may be necessary for Customer to separately purchase additional third-party applications that it chooses to use in connection with the Licensed Software.
2.1. Overview. One of the benefits of being a Customer is the highly regarded technical support that Company provides through the use of trained personnel during regular and seasonal working hours. While Company will provide technical support for the Tax Compliance Software, it does not and will not provide professional tax, accounting, or legal advice, such as advice regarding the appropriate handling of tax and accounting issues.
2.2. Restrictions. Company may provide system requirement information upon request, but Customer is solely responsible for preparing its computer systems for the Licensed Software. Company will not provide technical support for systems that do not satisfy the published minimum requirements. Company values its support personnel and does not tolerate verbal abuse or disrespect; such behavior may result in the immediate termination of Customer’s support privileges. Company does not provide support for any software, hardware or services that are not purchased directly through Company. Company further reserves the right to terminate its support services to Customer if Customer makes excessive support requests at a volume that materially exceeds the average amount of service requests made by similarly sized customers (determined by annual return volume); in lieu of support termination, a support fee may also be implemented upon mutual agreement with the Customer.
3.1. Refund Product Providers. Company works with certain third-party providers to allow for the offering of tax refund products such as refund transfers and refund advances (collectively referred to as “Refund Products”) through the Tax Compliance Software. Company will select authorized providers of Refund Products and currently intends to work with Refund Advantage, Republic Bank & Trust Company, Santa Barbara Tax Products Group and Refundo (the “Refund Product Providers”). However, the available Refund Product Providers are subject to change at any time at the Company’s sole discretion. If Company decides to add or remove a Refund Product Provider, we will notify the entire customer base of the change via email or other mass notice and provide all customers with enrollment instructions if a different Refund Product Provider needs to be selected. Customer is required to enter into a binding agreement with the Refund Product Provider of its choice no later than the annual enrollment closing date of your selected banking partner. Each Refund Product Provider will have applicable policies and procedures that Customer is required to follow.
3.1.1. Illinois Customers Please Note: Refund Advantage does not support a service bureau fee for Customers operating in Illinois. Refund Product Providers may institute other state-specific rules, over which Company has no control. If Company has assigned a Service Bureau fee to your site, and you elect to use Refund Advantage, Customer is advised that Company’s service bureau fee may be moved to the Transmitter Add-On Amount field and Customer may incur additional administrative fees as a result. Such fees will be displayed on the Company Enterprise Management Portal (“EMP”) at the time of enrollment.
3.2. Refund Product Fees. Customer acknowledges that certain fees may be charged by (i) the Refund Product Provider, (ii) the Software Publisher, and (iii) Company [listed below in the Section “Payment & Fees”], in connection with the Refund Products that Customer offers to the taxpayer. Customer will also have an option within the EMP to set its own fees to be charged to the taxpayer in connection with Refund Products. Please note that an additional admin fee (as specified in the EMP) may be charged by the Software Publisher in connection with the processing of any optional [that Customer may choose to set] Transmitter Fee Add-On, Technology Access Fee Add-On, or e-File Fee. Fees charged to Customer and/or the taxpayer by the Refund Product Provider and/or the Software Publisher are outside the control of Company and are subject to change within the sole discretion of each such party. Any optional fees set by Customer will be sent by the Refund Product Provider or Software Publisher to Company, and Company will first apply any such fees received to any balance due on Customer’s account, including, but not limited to electronic filing fees or other deferred balances, and/or the license fee for the following year’s tax compliance software. Any balance after all obligations to Company have been satisfied will be paid to Customer by July 15th. Customer may request payment of its balance prior to July 15th, but in such cases, Company will charge an early payment processing fee of $100.00 (although this fee will be waived if Customer renews its tax compliance software license prior to or at the time of the request).
3.3. Compliance. Customer is responsible for obtaining the taxpayer’s written consent, as required under IRS Code Section 7216, prior to using and/or disclosing the taxpayer’s personal information for purposes of issuing Refund Products, if and as required by the Tax Compliance Software and/or Refund Product Provider. Customer must provide each taxpayer that obtains a Refund Product with any fee statements with regards to the Refund Product as required by law. If Customer creates or uses any advertising for Refund Products, Customer must ensure that such marketing materials comply with all applicable federal and state laws and regulations. Company does not provide legal advice concerning Refund Products, marketing or compliance with local, state or federal laws. In addition, certain states have regulations and requirements for preparers who offer Refund Products that may change from time to time [such as Section 3.3.1]. It is Customer’s sole responsibility to be aware of and in compliance with these individual state regulations.
3.3.1. Customer acknowledges that there are states with special laws and regulations regarding Refund Products. Arkansas (AR), Connecticut (CT), Illinois (IL), Maine (ME), Maryland (MD), and New York (NY) have added regulations to prevent tax preparers from charging extra fees to taxpayers opting to use Refund Products to receive payment of their tax refund. In short, tax preparers in these states must charge the same fees to all taxpayers. If you are doing business in these states should familiarize yourself with the requirements of the law in their state. States with Special Laws Regarding Refund Product Fees.
4.1. Introduction. Customer has the option, but not the obligation, to work with METIK, an Affiliate of Company, for the creation of a custom web site and/or a mobile application (collectively the “METIK Applications”), as well as for the creation of certain marketing materials (“Design Services”). METIK Applications and Design Services are provided at an additional charge. METIK Applications are licensed as an annually renewable subscription with maintenance fees after the first year. Customer agrees that an annual fee for hosting and maintenance will apply for the METIK Applications. For purposes of this Agreement, METIK Applications are also included under the definition of Licensed Software.
4.2. Ownership. Customer shall obtain no ownership in the intellectual property of the METIK Applications and Design Services, including any source code, graphics, photos, mock-up files or written copy contained therein (except for Customer Information, as defined in Section 4.3). Customer must not use any of the METIK Applications or any content supplied or created by METIK after the Term, unless Customer has renewed the applicable applications with METIK. Customer must not modify, copy, duplicate, reproduce, license or sublicense content, or transfer or convey the source code or other work product of any METIK Applications or Design Services to any third-party without the prior written consent of METIK. Customer will be granted a perpetual license to use the final deliverables of any fully paid Design Services order, provided that such deliverables may not be modified or sublicensed by Customer in any way without written permission from METIK. Customer agrees that any actions in violation of the foregoing will be deemed a material breach of this Agreement and subject to immediate termination without refund. Unauthorized reproduction and distribution will also be considered a violation of METIK’s rights under US law and subject to all available remedies under the law.
4.3. Customer Information. As between Company and Customer, all of Customer’s taxpayer client information is owned by Customer. METIK will not directly solicit any such taxpayer clients owned by Customer. All content provided by Customer for use in the METIK Application(s) will be owned by Customer and Customer represents that it will not provide any content, graphics, photos or other media for use in the METIK Application(s) unless such materials are either owned or properly licensed for such use by Customer. All such information owned by Customer is defined as “Customer Information.”
4.4. Logos. Notwithstanding Section 4.2, full ownership in any logo(s) designed by METIK for Customer shall automatically transfer to Customer upon full payment by Customer for such logo(s). METIK shall retain the right to display logos and other graphics from the METIK Applications as examples of its work within its portfolio, which may be publicly displayed by METIK, electronically or otherwise.
4.5. Copyright Notices. All METIK Applications will contain a copyright/legal statement with a link to Company or METIK’s contact information. Customer understands that any METIK Applications submitted to Google Play Store and/or the Apple App Store will contain copyright information about METIK.
4.6. Domain Names. Customer is required to provide or else register and purchase an Internet domain name of its choice through a domain registrar (e.g., GoDaddy.com, Gandi.net and Name.com) for any METIK Application involving a custom website. Customer will be the sole owner of the domain name and will be solely responsible for maintaining and renewing the domain name registration. Customer agrees to work with METIK or to otherwise grant it access to the domain name registration account for purposes of directing the domain name to METIK’s hosting servers.
4.7. Mobile App Disclosure. Please note that the iOS version of the mobile app will be published in the Apple App Store as the “TaxMobileApp” and will require your customers to enter a code to access Customer’s version of the app. If Customer prefers to have its own unique app on the Apple App Store, this is available, but Customer must register for its own Apple Developer Account (currently a $99 annual registration fee) and provide information such as a DUNS number (see Organization requirements at https://developer.apple.com/programs/enroll/). There are currently no such restrictions with the Android version of the app and the Google Play Store.
4.8. Project Completion. Custom projects will require Customer to work cooperatively with METIK to complete the project in a timely manner. Customer must provide all requested information and responses within two (2) business days or less in order to avoid delays. The parties agree to work together to expeditiously complete the project within the delivery time frame provided by METIK on the sales order form or otherwise. Customer’s delay or failure to provide required content or approvals will not be a valid reason for a refund. Customer must provide all requested content prior to METIK being able to provide proofs for approval.
4.9. Project Delivery. METIK Applications will be published explicitly to METIK’s hosting service provider, upon approval by Customer of the final proof. Customer agrees that once the project has been published, any changes requested will be considered as maintenance and additional fees may apply. Deliverables requiring the production of printed work product (e.g., banners, signs, etc.) will require Customer’s final written approval and payment before delivery.
4.10. Payment Terms. Upon Customer’s election to obtain METIK Applications, Customer agrees to render a 50% non-refundable deposit of the cost for the specific services to be performed, with final payment due immediately upon delivery of the completed project. Customer agrees that should a project be stopped for any reason before completion, the project files or content will not be transferred to Customer and METIK will remain the respective owner. METIK reserves the right to remove any content should Customer default on payments associated with the METIK Applications services provided. Pursuant to Section 4.9, Design Services must be paid for in full before any deliverables will be printed and delivered to Customer.
4.11. Term. Customer agrees that all METIK Applications are provided only during such time that Customer is under agreement with Company in connection with the Tax Compliance Software offered by Company. If this Agreement or use of the Tax Compliance Software expires or otherwise terminates, METIK will have the right to remove, disable and/or delete any METIK Applications from the server, the Google Play Store, and the Apple App Store without further notice. Customer acknowledges that no Customer Information located within any of the METIK Applications will be provided to Customer after such termination and Customer is responsible for exporting any Customer content through the feature provided on the content management system prior to termination. METIK will delete all Customer Information shortly after termination.
4.12. IP Indemnification. Subject to the other terms and conditions set forth herein, METIK agrees to defend Customer at METIK’s sole cost and indemnify Customer (by paying for damages finally awarded against Customer or any amounts payable in any settlement entered into in compliance with this Agreement) from and against any claims, demands, actions or proceedings by any third parties alleging that Customer’s use of the METIK Applications as provided and permitted herein infringes or violates such third-party’s US intellectual property rights; provided that: (i) METIK is notified promptly in writing of the claim; (ii) METIK controls the defense, settlement and approval of the claim; and (iii) Customer cooperates reasonably, assists and gives all necessary authority to METIK and reasonably required information in connection with the defense or settlement of the claim. METIK’s obligations under this section will not apply if and to the extent that they arise from or relate to: (i) the access or use of the METIK Application in any manner other than as provided and permitted by METIK hereunder and as required to be used by Customer hereunder; (ii) the use of the METIK Applications in combination with any intellectual property, services, reports, documentation, hardware, software, data or technology not supplied by METIK Applications; or (iii) any data or information, or other intellectual property supplied by Customer or any third-party not affiliated with METIK. If any METIK Application becomes, or in METIK’s opinion, is likely to become, the subject of a third-party claim covered by METIK’s indemnification obligations under this section, then METIK may, in its sole discretion and at its sole cost and expense: (i) procure for Customer the right to continue using such METIK Application; (ii) modify the infringing portion of the METIK Application so as to render it non-infringing but still appropriate for its intended use under this Agreement; or (iii) replace the infringing portion of the METIK Application with non-infringing items with substantially similar functionality. If METIK reasonably determines that none of the foregoing is commercially practicable, then METIK may elect to terminate the applicable services and grant Customer a refund of the fees paid for the affected METIK Application less an allocation for use made by Customer prior to the termination. This section states the sole and exclusive remedy of Customer with respect to any actual or claimed infringement or other violation of any third-party’s intellectual property rights under this Agreement. Furthermore, Customer agrees to defend METIK and its officers, directors, employees and agents, at Customer’s sole cost and to indemnify METIK (by paying for damages finally awarded against METIK or any amounts payable in any settlement entered into in compliance with this Agreement) from and against any claims, demands, actions or proceedings by any third parties arising out of: (i) the access or use of the METIK Application in any manner other than as provided and permitted by METIK hereunder and as required to be used by Customer hereunder; (ii) the use of the METIK Applications in combination with any intellectual property, services, reports, documentation, hardware, software, data or technology not supplied by METIK Applications; or (iii) any data or information, or other intellectual property supplied by Customer or any third-party not affiliated with METIK.
4.13. Territory. The METIK Applications are provided solely for use in connection with the promotion of Customer’s US based tax preparation services. Consequently, the METIK Applications are intended to only be accessed within the United States by US taxpayers. METIK provides no representations or support regarding use, operation, legal compliance or security of the METIK Applications outside of the United States.
4.14. Other Terms. METIK is an Affiliate of the Company, and as such, the terms of this Agreement, and the benefits, disclaimers, obligations and rights of the party referred to as “Company” under this Agreement, shall apply to METIK severally, and not jointly, for any services or actions that are specifically performed by METIK.
5. THIRD PARTY PRODUCTS.
5.1. “Third-Party Product(s)”. In connection with Customer’s use of the Tax Compliance Software, Customer may be made aware of services, products, offers and promotions provided by third parties, and not by Company (“Third-Party Products”), which may include refund processing, payment processing services (e.g., PayJunction) and audit assistance, among others. If Customer decides to use, offer and/or resell Third-Party Products, Customer is responsible for reviewing and understanding the terms and conditions as well as any fees, if any, governing the use, offering or reselling of those Third-Party Products. Customer authorizes Company to use and disclose Customer’s contact information, including name and address, for the purpose of making the Third-Party Products available to Customer, or to assist or facilitate enrollment, if and as applicable. You agree that the third party, and not Company, is responsible for the performance of the Third-Party Products. The Tax Compliance Software may contain or reference links to websites operated by third parties (“Third-Party Websites”). These links are provided as a convenience only. Company is not responsible for the content of any Third-Party Websites or any link contained in a Third-Party Website. Company does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, and the inclusion of any link in the Tax Compliance Software is not and does not imply an affiliation, sponsorship, endorsement, approval, investigation, verification or monitoring by Company of any data contained in, or any services made available through, any Third-Party Websites. In no event will Company be responsible for the information contained in such Third-Party Websites or for Customer’s use of or inability to use such websites. Access to any Third-Party Website is at your own risk, and Customer acknowledges and understands that linked Third-Party Websites may contain terms and privacy policies as well as fees that are different from those of Company. Company is not responsible for such provisions, and expressly disclaims any liability for use of such Third-Party Products and Third-Party Websites.
5.2. 7216 Consents. Customer accepts full responsibility for obtaining any taxpayer and other third-party consents or authorizations (in compliance with IRC 7216 and any other applicable governmental law, regulation and licenses) in connection Third-Party Products offered in connection with or accessible through the Tax Compliance Software.
5.3. Third-Party Products and Customer and Taxpayer Data. If Customer or any of its taxpayers installs or enables Third-Party Products for use with the Tax Compliance Software, Customer acknowledges that Company may allow providers of those Third-Party Products to access Customer data and taxpayer data as required for the interoperation of such Third-Party Products with the Tax Compliance Software. CPTS shall not be responsible for any disclosure, modification or deletion of any Customer data and taxpayer data resulting from any such access by Third-Party Products providers.
5.6. Third-Party Product Fees. In the event a fee for a Third-Party Product is collected directly by the Customer, Customer authorizes Company to collect the fee on behalf of the applicable Third-Party Service Provider by using any existing credits Customer may have on account with Company. Except as expressly stated in this Agreement, Company does not provide any incentives or other payments for or on behalf of any Third-Party Service Provider. If allowed by Third-Party Service Provider, the data entry and accuracy of any mark-up amounts selected by the Customer during enrollment at EMP or directly via Billing Setup within the Tax Compliance Software program, are the sole responsibility of the Customer.
5.7. Third-Party Product Limitations. Customer is advised that the ability to add mark-up amounts to a product transaction for their clients is at the sole discretion of the Third-Party Service Provider and may not be available. In addition, some Third-Party Products may not be supported by a specific Company Refund Product Provider.
6.1. Company. Company represents that:
6.1.1. it has all legal rights and authority to enter into this Agreement, and by entering into this Agreement Company will not be violating any third-party agreements that would otherwise prohibit it from fulfilling its obligations hereunder;
6.1.2. it has the right to grant to Customer the rights in the software, products and services that the Company provides to Customer pursuant to this Agreement and the applicable order form(s);
6.1.3. it has not inserted into any of its software any virus or similar code to erase data;
6.1.4. it will use commercially reasonable efforts to provide its services in a professional manner in compliance with all applicable laws; and
6.1.5. it will comply with all laws, regulations, policies and procedures applicable to the operation of its business.
6.2. Customer. Company depends on its customers to honor the commitments required under this Agreement and to operate in a professional manner. In furtherance of this expectation, Customer makes the following representations and covenants:
6.2.1. Exclusivity. During the Term of this Agreement, Customer represents, warrants and covenants that it will only use the Tax Compliance Software provided by Company for any and all tax returns prepared and transmitted by Customer, and Customer will only process and transmit Refund Products through a Refund Product Provider who is approved by Company in writing. Customer will not take any action to circumvent this exclusivity. In the event that Company discovers Customer is using an unauthorized Refund Product Provider and/or tax compliance software not obtained through Company, Customer agrees that Company may charge, or otherwise obtain from Customer, a fee per tax return as executed on the Terms and Conditions located on your sales order form and bound by this Agreement, and a separate $39.95 fee per funded Refund Product that was filed in connection with such unauthorized product. Customer agrees that the fees represent a fair and reasonable approximation of the harm that would result from Customer’s breach of its exclusivity obligations hereunder.
6.2.2. Engagement. Customer has all legal rights and authority to enter into this Agreement, and by entering into this Agreement Customer will not be violating any third-party agreements that would otherwise prohibit it from fulfilling its obligations hereunder. Customer will provide only accurate, current and complete information on any forms, applications or other questionnaires provided by Company, a Refund Product Provider or a Third-Party Service Provider, and shall keep all contact information current by updating Company of any changes. Customer is entering into this Agreement for the sole purpose of offering commercial tax compliance services to its taxpayer clients and will not use its relationship with Company for a surreptitious purpose of obtaining information from or about Company, its third-party partners and/or their products and services.
6.2.3. License Use. Customer will not use, or permit others to use, any software, products or services offered by Company in a manner or to an extent that exceeds Customer’s authorized use as specified in the sales order form(s) entered into by Customer. Customer will not modify, create derivative works from, or sublicense any software or products provided to it by Company, nor reverse engineer, decompile, disassemble, or otherwise attempt to derive any source code from such software.
6.2.4. Compliance. Customer will comply with all applicable policies, procedures and agreements, including Refund Product Provider guidelines and any Software Publisher end user agreements. Customer will comply with all laws, regulations, policies and procedures of any government agency. Customer is not, nor has ever been, subject to federal, state or regulatory enforcement proceedings relating to tax compliance and/or Refund Products. Customer and Customer’s EFIN are currently in good standing with the IRS and Customer acknowledges it is their sole responsibility for maintaining, monitoring and protecting their EFIN and e-Services account as outlined in IRS Publication 3112. Customer will not use any software, products or services provided by Company or its third-party partners in any manner that could be deemed unlawful or potentially harmful. Customer will not misrepresent to its clients the nature of any products or services offered in connection with this Agreement.
6.2.5. Data Security. Customer has implemented and will maintain reasonable security measures to ensure the protection of all taxpayer information, including all taxpayer data security and protection laws outlined by the Federal Trade Commission – Safeguards Rule and as outlined in IRS Publication 1345 - Handbook for Authorized IRS e-file Providers of Individual Income Tax Returns and IRS Publication 4557 – Safeguarding Taxpayer Data. In addition to any reporting requirements as outlined by the IRS and Individual State Tax Authorities, Customer will immediately notify Company if Customer reasonably believes that a breach of data has occurred.
7.1. Pricing and Payments. All products and services are sold by Company at the then-current price established at the time of purchase. Customer will pay Company in accordance with the sales order form. Unless the parties agree otherwise in a sales order form, Company reserves the right to revise any of the fees it charges in connection with tax returns and Refund Products upon notice to Customer at any time during the Term prior to the official IRS starting date of E-Filing for the current tax season. All payments must be made with one of the following methods of payment:
· A valid credit card;
· A valid debit card;
· A valid ACH bank draft authorization;
· The Wallet;
· A Pass-Through Account established by Customer;
· The Cash Saver Program provided by Company (for the Tax Compliance Software only) [see Section 7.8 below]; or
· Fees accrued in connection with the sale of Refund Products.
7.2. Late Payments. A late payment charge of the lesser of 1½% per month or the highest rate allowed by applicable law may be applied to any outstanding balances until paid. Failed payments (e.g., insufficient funds, incorrect account numbers, etc.) are subject to a service fee of a minimum of $20 for each occurrence or the maximum amount permitted by law. Company shall also have the right to restrict Customer’s account from access to the electronic filing center if any payment becomes overdue.
7.3. Electronic Filing Fee Charged by Company to Customer. Electronic filing fees are charged to Customer in connection with tax returns that are electronically filed through the Tax Compliance Software. Electronic filing fees will be specified in the sales order form and are invoiced on a biweekly basis for the months of February, March and April and on a monthly basis for all other months.
7.3.1. The Electronic Filing Fee is explicitly charged to Customer and not to the taxpayer. Customer must not charge the Electronic Filing Fee to taxpayers, either directly or by indirectly creating a new fee that includes the Electronic Filing Fee. Further, Customer may not impose higher fees for tax preparation as a result of the Electronic Filing Fee or based on whether or not a taxpayer chooses a Refund Product.
7.3.2. Customers may have the ability through the Software Publisher or through certain Refund Product Providers to charge their own Electronic Filing Fee.
7.4. Business Return Creation Fee. If you require access to the business return functionality within the Tax Compliance Software, you will be charged an additional license fee as set forth on your sales order form. The business returns that you create will incur a business return creation fee on a per-return basis. Note that the business return creation fee is triggered by creation of the business return and not by electronic filing. No additional electronic filing fee will be charged in connection with business returns; the electronic filing fee is included within the business return creation fee. Your sales order form will specify the amount of the business return creation fee, as well as whether your particular business software license package includes any credits toward your business return creation fees. Business return creation fees are invoiced on a biweekly basis for the months of February, March and April and on a monthly basis for all other months. Fees charged by the Software Publisher in connection with business returns are outside of Company’s control; fees may be modified or added by the Software Publisher in its sole discretion.
7.5. Service Bureau Fee [referred to as “uTax Fee”]. If you decide to offer Refund Products, a Service Bureau Fee may be charged by Company (1) for enabling Refund Products to be used in Customer’s tax office so clients can pay their tax prep fees, and (2) for helping in the set-up and processing of Refund Product applications (charged on a per Refund Product basis). Customer will authorize and direct the Refund Product Provider to deduct the Service Bureau Fee for Company directly from taxpayer’s refund during the settlement process. If Customer operates in any state [ME, MD, NY, AR, CT or IL] that prohibits a separate charge for Refund Product fees, or any fees not also present on a non-Refund Product return, this fee is charged by Company to Customer, on all returns, for its proprietary Program which enables Customer to offer certain client services. Customer can authorize and direct this fee to be passed through to the taxpayer. Customer may be able to add-on to this fee as set forth in the EMP. On Refund Product returns, this fee is withheld from the refund and distributed accordingly by the bank. On non-Refund Product returns, the preparer is responsible for charging and collecting this fee.
7.6. Fees Charged by the Software Publisher.
7.6.1. Remote Signature Fee. A fee (currently $5) will be charged per completed remote signature per SSN in connection with use of the electronic remote signature functionality within the Tax Compliance Software. For example, the current fee is $5 on a Single or HoH return, and a max of $10 if both spouses use remote sign on a MFJ return. Fees charged by the Software Publisher in connection with remote signatures are outside of Company’s control; fees may be modified or added by the Software Publisher in its sole discretion. Customer can authorize and direct this fee to be passed through to the taxpayer, and Customer may have the option to add-on to this fee as set forth in the EMP.
7.6.2. Tech Fee. This is a flat fee of $4.00 charged by Software Publisher to Customer when a tax return is transmitted for the cost of programming, communication protocols and the ongoing costs of maintenance, updates and enhancements to the Tax Compliance Software and related network infrastructure. Customer can authorize and direct this fee be passed through to the taxpayer. Customer may elect to add-on to this fee as set forth in the EMP.
7.6.3. Administrative Fees. When Customer elects to add-on or implement other fees to taxpayers that will require the Software Publisher’s administration, the Software Publisher will charge an administrative fee for processing and handling the administration of these add-on or other fees. Such add-ons or other fees, if selected [within the EMP], will require Customer to accept Software Publisher’s T&Cs for the implementation of such add-ons or other fees.
7.6.4. Prior TY Software Access Fee. This is a flat fee of $12.00 charged by Software Publisher to Customer [through the Wallet] when Customer accesses the software of a prior tax year and then transmits a return from that prior tax year through Tax Compliance Software.
7.6.5. Trans Fee. If you decide to offer Refund Products, the state in which your office(s) is located will dictate which one of these fees is charged to your taxpayer clients. Only one of these fees will be charged. If your office is in a Restrictive State (AR, CT, IL, MD, NY & ME), the “Transmitter” Fee will be applicable. In all other states, the “Transmission” Fee will be charged. See below for further explanation.
§ Transmission Fee [Charged in all States except “Restrictive States”].
If you wish to offer Refund Products, Software Publisher charges a Transmission Fee for each approved Refund Product application transmitted through the Tax Compliance Software. Customer will authorize and direct the Refund Product Provider to deduct the Transmission Fee for the Software Publisher directly from taxpayer’s refund during the settlement process. Unless otherwise stated in writing, the default Transmission Fee is as follows: $25.95. THIS FEE IS CHARGED ON A PER REFUND PRODUCT BASIS. Customer may elect to add-on to this fee as set forth in the EMP.
§ Transmitter Fee [Charged in Restrictive States – ME, MD, NY, AR, CT & IL].
Some states put restrictions on what types of additional fees may be charged to taxpayers that utilize a Refund Product. If you wish to offer Refund Products and operate in a Restrictive State that prohibits (1) a separate charge for Refund Product fees (like the Transmission Fee listed above), or (2) any fees also not present on a non-Refund Product return, Software Publisher will charge a Transmitter Fee in place of the Transmission Fee. The Transmitter Fee is charged for the transmission and security of data and/or documents through the Tax Compliance Software. For each return, Software Publisher will charge the Transmitter Fee. The default Transmitter Fee is $25.95. THE FEE IS CHARGED ON ALL RETURNS, REGARDLESS OF WHETHER A REFUND PRODUCT IS USED. Customer can authorize and direct this fee be passed through to the taxpayer. Customer may elect to add-on to this fee as set forth in the EMP.
7.7. Additional Fees. Company makes every effort to disclose in this Agreement and/or in your sales order form all fees that will be charged in connection with its services and your use of the Tax Compliance Software and other third-party products and services. However, certain third-party fees, including fees associated with certain returns prepared through the Tax Compliance Software, may not be known by Company as of the date of your sales order. If additional fees are required by the Software Publisher, the Refund Product Providers or the Third-Party Product & Service Providers, Company will provide Customer with notice of such additional fees within a reasonable time following Company’s own receipt of notice of any such required fees. You acknowledge that third-party fees are outside the control of Company and Company will not be liable or otherwise responsible for any such fees, regardless of when any such fee is instituted.
7.8. Taxes. Customer will pay any applicable taxes relating to this Agreement, other than taxes based on Company’s income and any franchise-related taxes.
7.9. Cash Saver Program. Customer may elect to defer the full payment of the Tax Compliance Software by enrolling in the Cash Saver Program. The Cash Saver Program is only available in connection with the purchase of Tax Compliance Software and not available in connection with any other purchases from or payments to Company. The Cash Saver Program is not a loan, and no interest is charged. Participation in the Cash Saver Program is voluntary and will be notated on Customer’s sales order form. The Cash Saver Program requires a $50.00 administrative setup fee and a specified down payment to be made at the time of purchase. The deferred payments will be collected through certain fees charged in connection with each approved Refund Product that Customer sells. Customer must enroll with an approved Refund Product Provider to participate in the Cash Saver Program. See Section 3 for additional terms and information about the offering of Refund Products. If the specified fees collected by Company in connection with Customer’s Refund Product sales is insufficient to pay-off the outstanding account balance before March 15 of the current tax season, then the remaining balance will become due immediately, and Customer agrees the balance may be collected by Company on March 15 of the current tax season, through use of the other payment methods referenced in Section 7.1. Company shall have the right to suspend or terminate Customer’s account and refuse any use of the services and electronic filing center access until payment in full is received.
7.10. Payment Collection Through Refund Product Provider or the Software Publisher. In addition to the other methods of payment collection provided for in this Agreement, Company may also seek uncollected amounts owed to Company by requesting such amounts from Customer’s Refund Product Provider or the Software Publisher. BY ENTERING INTO THIS AGREEMENT, CUSTOMER HEREBY AUTHORIZES COMPANY TO REQUEST FROM CUSTOMER’S REFUND PRODUCT PROVIDER OR THE SOFTWARE PUBLISHER, AND HEREBY AUTHORIZES CUSTOMER’S REFUND PRODUCT PROVIDER OR THE SOFTWARE PUBLISHER TO PAY TO COMPANY, ANY AMOUNTS OTHERWISE DUE TO CUSTOMER BY THE REFUND PRODUCT PROVIDER AND ACTUALLY OWED TO COMPANY BY CUSTOMER. Company agrees to use this remedy only if Company is unsuccessful in collecting such overdue payment after having made a commercially reasonable effort to collect the overdue payment through the other payment methods specified in Section 7.1.
8. Disclaimers
8.2. Data Breach. Company is not responsible for any loss caused due to any data breach or hacking of its servers. Customer agrees to hold harmless Company for any claims arising because of an interception of Customer’s data by a third-party while the data is being sent over interconnected local and wide-area networks.
8.3. Preparation of Returns. Regardless of the services and support provided by Company, Customer will remain solely responsible for the proper preparation, accuracy (including computational accuracy), and review of all tax returns created by Customer while using the Licensed Software provided by Company.
8.4. Product Selection. Customer is solely responsible for the selection of the appropriate software, products and services to satisfy Customer’s business needs, as well as for selecting, obtaining and maintaining all hardware, software, computer capacity, Internet service, program and system resources and other equipment and utilities needed to use the software, products and services provided by Company.
8.5. Modifications and Functionality. Company and its third-party partners may add additional functionality as enhancements to its software, products and/or services at no additional fee, or as one or more separate products or services for an additional fee. Company reserves the right to discontinue and/or replace the Licensed Software and other products or services in Company’s sole discretion, for any reason including, but not limited to the fact that the product or service has a superior replacement, is no longer economically feasible or has become technologically out of date.
9.1. Proprietary Rights. All products, software, services and support are proprietary to Company, the Software Publisher and/or the Third-Party Service Providers, as applicable, and may include copyrighted works, trade secrets, or other materials created at great effort and expense. Customer will not in any way contest the validity of the rights in/or ownership of any of its products and services or documentation provided under this Agreement. Customer will reproduce Company’s copyright and proprietary rights legend on all copies of materials that Customer is permitted to reproduce or distribute. Except as stated in Section 4.4, neither party will use the tradenames, trademarks or service marks of the other party in any news release, publicity, advertising, or endorsement without the prior written approval of the other party. Customer shall not disclose the negotiated pricing or terms of this Agreement, or of any sales order form, to any third-party.
9.2. Confidential Information. Each party (“Recipient”) will treat all information provided by the other party (“Discloser”) that Discloser designates in writing to be confidential in the same manner as Recipient treats its own confidential information, but with no less than reasonable care; provided that i) Recipient may share such information with its employees and third-party service providers, with a need to know and/or in order to fulfill the obligations pursuant to this Agreement (“Representatives”), in furtherance of the provision of the products and services hereunder, that are subject to confidentiality obligations substantially as restrictive as those set forth in this Section and ii) Recipient assumes responsibility for such employee’s and third-party service provider’s use of such information. Discloser represents and warrants that it has all necessary legal rights, title, consents and authority to disclose such confidential information to Recipient. Notwithstanding such confidential status, Customer agrees that Company may, without identifying Customer as the source of such information, use information provided by Customer to create, update, merge, analyze, maintain or enhance its database of information, as permitted by law. Company will not transfer, disclose, sell or otherwise distribute such information in the form supplied by Customer to any third-party (other than its Representatives) without Customer's consent, unless Company is required by law to do so. Confidential information shall not include information that (i) is or becomes a part of the public domain through no act or omission of Recipient; (ii) was in Recipient’s lawful possession prior to Discloser’s disclosure to Recipient; (iii) is lawfully disclosed to Recipient by a third-party with the right to disclose such information and without restriction on such disclosure; or (iv) is independently developed by Recipient without use of or reference to the confidential information.
10.1. Term. The Term of this Agreement shall run from the date of Customer’s acceptance of this Agreement until October 31, 2024 (the “Term”).
10.2. Cancellation and Refund Policy. Upon written request from Customer, which must be received by Company within 72 hours of the date of Customer’s acceptance of this Agreement, Company will refund all license fees paid by Customer under the order, less an 18% order processing fee. The foregoing is the full extent of Customer’s refund remedy. CUSTOMER UNDERSTANDS AND AGREES THAT COMPANY SHALL HAVE INCURRED EXPENSES IN ANTICIPATION OF ITS PERFORMANCE UNDER THIS AGREEMENT AND THAT NO REFUND SHALL BE MADE FOR ANY REASON MORE THAN 72 HOURS AFTER CUSTOMERS ACCEPTANCE OF THIS AGREEMENT WITH COMPANY. MOREOVER, THE SALES ORDER FORM ISSUED BY COMPANY, ALONG WITH THIS AGREEMENT, IS A BINDING CONTRACT AND COMMITMENT BY CUSTOMER TO PAY THE AMOUNT LISTED IN THE ORDER STATEMENT; CUSTOMER SHALL HAVE 72 HOURS TO CANCEL OR NOTIFY COMPANY OF ANY PRICING ERRORS IN THE
ORDER STATEMENT. If the software is installed before the 72-hour cancellation period expires, Customer will not qualify for a refund. All return-associated filing fees are non-refundable and accrue at the time of the filing.
10.3. Prohibited Refund Methods. Customer expressly agrees to not use credit card charge-back as a means of terminating this Agreement. Should Customer attempt to terminate this Agreement through any financial recovery methods offered by a financial institution, Company reserves the right to charge Customer a $50 fee in addition to all other remedies available to Company under this Agreement.
10.4. Termination.
10.4.1. In the event of a material breach of Sections 6.2.1 through 6.2.5, Company may immediately terminate this Agreement or, in its sole discretion, Company may suspend Customer’s use of any and all software, products and/or services. While Company will make good faith efforts to reactivate access to services upon Customer remedying any suspension, Company makes no guarantees regarding the timing of reactivation. Customer shall be required to cure any such breach within three (3) business days. If Customer fails to regain compliance within such time, Company may, in its sole discretion, terminate this Agreement for cause, in addition to any other rights or remedies Company may have. In the event of a material breach of any other part of this Agreement by Customer or Company, the non-breaching party may terminate this Agreement if such breach is not cured within thirty (30) days of written notice of the breach.
10.4.2. Except as prohibited by law, Company reserves the right to refuse or discontinue software, products and services to any Customer without cause and provide a full refund of any amounts paid by Customer minus the value of any software, products and services utilized. Customer acknowledges that Company must have this right in order to address business or legal changes outside its control or to preserve the integrity of Company’s reputation within the industry and fulfill any requirements to prevent and/or prohibit fraud. This section does not limit Company’s right to discontinue software, products and services without refund granted in other sections of this Agreement.
10.4.3. If, in the sole judgment of Company, a change by the Software Publisher or a change in the competitive, legislative, or regulatory environment makes a current Licensed Software or service offering of Company no longer commercially feasible, profitable or practical, Company reserves the right, in its sole discretion to: (i) terminate this Agreement; (ii) replace the Licensed Software with different software, provided that the replacement provides similar functionality; and/or (iii) adjust its fees and/or pricing to offset the financial impact of any such change.
10.4.4. Customer agrees to hold harmless Company for any claim that may arise out of Company’s termination of a Customer's software, products and/or services as permitted under this Agreement.
10.4.5. Customer acknowledges that the following will not be grounds for its termination of this Agreement: (i) Customer’s reliance on future functionality of the Licensed Software; (ii) system requirement changes in the Licensed Software;
(iii) Company’s replacement of the Licensed Software to a reasonably comparable alternative software; or (iv) reasonable delays in the delivery of the Licensed Software (note, the Tax Compliance Software will typically be delivered no later than January of the applicable tax season).
10.5. Effect of Termination. Termination of this Agreement for any reason will result in a termination/suspension of all licenses, services and outstanding orders. Customer can ensure continuation of services by renewing the Tax Compliance Software prior to the expiration of the Term. If, without Company’s written permission or as permitted hereunder, Customer continues to use any software, products and/or services after the applicable license has terminated, in addition to any other remedies available to Company for such breach of the Agreement, Customer will be liable to Company for the undiscounted fees (including annual fees for software generally licensed on an annual basis) for such software, products and/or services in effect on the date of such termination or expiration.
10.6. Survival. The provisions set forth in Sections 1.3, 4.2, 4.4, 4.9, 4.10, 8.1, 8.2, 9.1, 9.2, 10.3, 10.4, 10.5, 10.6, 11, 12 and 13 will survive the termination of this Agreement.
11. Company WARRANTIES.
11.1. Company’s General Warranties. Company represents and warrants that: (a) it has title to the Tax Compliance Software or the right to grant Customer the rights granted hereunder; (b) the Tax Compliance Software does not violate any third party’s United States patent, copyright or trade secret rights; and (c) Company has not inserted any virus or similar device to erase data. Customer’s sole and exclusive recourse and remedy – and Company’ sole, exclusive and entire liability – for a breach of items (a) and (b) by Company shall be the exercise of its indemnity rights in accordance with subsection 11.2 below. For a breach of item (c) Customer’s sole and exclusive recourse and remedy – and Company’s sole, exclusive and entire liability – shall be to terminate the Agreement and obtain a refund of the fees paid for the directly affected Tax Compliance Software less an allocation for use made by Customer prior to the breach.
11.2. Indemnification by Company.
11.2.1. Subject to the other terms and conditions set forth herein, Company agrees to defend Customer, its employees, officers, directors and Affiliates at Company’s sole cost and indemnify Customer (by paying for damages finally awarded against Customer or any amounts payable in any settlement entered into in compliance with this Agreement) from and against any claims, demands, actions or proceedings by any unaffiliated third party alleging that the Tax Compliance Software as provided hereunder infringes or violates such third party’s United States patent, copyright or trade secret rights; provided that: (i) Company is notified promptly in writing of the claim; (ii) Company controls the defense, settlement and approval of the claim; and (iii) Customer reasonably cooperates, assists and gives all necessary authority to Company and reasonably required information in connection with the defense or settlement of the claim.
11.2.2. Company’s indemnity obligations set forth in subsection 11.2.1 hereof will not apply if and to the extent that they arise from or relate to: (i) the use of the Tax Compliance Software in any form or substance other than as provided by Company hereunder and as required to be used by Customer hereunder; (ii) use of a superseded version of some or all of the Tax Compliance Software if the infringement or violation would have been avoided or mitigated by the use of a subsequent version (and/or Update) of the Tax Compliance Software that is provided to Customer; (iii) the modification of the Tax Compliance Software by Customer or any third party not authorized in writing by Company to do so; (iv) the use of the Tax Compliance Software in combination with any intellectual property, services, reports, documentation, hardware, software, data or technology not supplied by Company; or (v) any data or information, or other intellectual property supplied by Customer, an user or any third party.
11.2.3. If the Tax Compliance Software becomes, or in Company’s opinion, is likely to become, the subject of a third party claim covered by Company’s indemnification obligations as set forth in subsection 11.2.1, then Company may, in its sole discretion and at its sole cost and expense: (i) procure for Customer the right to continue using such Tax Compliance Software (ii) modify the infringing portion of the Tax Compliance Software so as to render it non-infringing but still appropriate for its intended use as set forth in this Agreement; or (iii) replace the infringing portion of the Tax Compliance Software with non-infringing items with substantially similar functionality. If COMPANY reasonably determines that none of the foregoing is commercially practicable, then Company may elect to terminate this Agreement and grant Customer a refund of the fees paid for the affected Tax Compliance Software less an allocation for the use made by Customer prior to the termination.
11.2.4. This subsection 11.2 states Company’s entire liability and the sole and exclusive remedy of Customer, its employees, officers, directors and Affiliates and any User with respect to any actual or claimed infringement or other violation of any third party’s intellectual property rights.
11.3. Limited Warranty. EXCEPT AS STATED IN SUBSECTION 11.1, THE TAX COMPLIANCE SOFTWARE, SUPPORT, ELECTRONIC FILING, AND ANY SERVICE OR PRODUCT PROVIDED HEREUNDER ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. COMPANY DISCLAIMS AND EXCLUDES ANY AND ALL OTHER WARRANTIES INCLUDING ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IRRESPECTIVE OF ANY COURSE OF DEALING OR PERFORMANCE, CUSTOM OR USAGE OF TRADE. CUSTOMER BEARS THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE TAX COMPLIANCE SOFTWARE, INCLUDING ELECTRONIC FILING. COMPANY DOES NOT WARRANT THAT USE OR OPERATION OF THE TAX COMPLIANCE SOFTWARE OR ELECTRONIC FILING WILL BE UNINTERRUPTED, THAT THEIR USE OR OPERATION WILL BE FREE OF ERRORS OR DEFECTS, THAT ALL DEFECTS WILL BE CORRECTED OR THAT THE TAX COMPLIANCE SOFTWARE WILL PROPERLY OPERATE ON ANY SPECIFIC OPERATING SYSTEM OR COMPUTER HARDWARE OR CONFIGURATIONS OR BEFORE OR AFTER ANY SPECIFIC DATE OR TIME PERIOD. CUSTOMER WILL BE SOLELY RESPONSIBLE FOR THE SELECTION, USE AND SUITABILITY OF THE TAX COMPLINACE SOFTWARE AND COMPANY WILL HAVE NO LIABILITY THEREFOR.
11.4. Limitation of Liability and Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ENTIRE LIABILITY OF COMPANY, ITS AFFILIATES AND SUPPLIERS FOR ALL CLAIMS RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE TAX COMPLIANCE SOFTWARE PROVIDED HEREUNDER DURING THE TWELVE (12) MONTHS PRIOR TO SUCH CLAIM. SUBJECT TO APPLICABLE LAW, COMPANY, ITS AFFILIATES AND SUPPLIERS ARE NOT LIABLE FOR ANY OF THE FOLLOWING: (A) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES; (B) DAMAGES RELATING TO FAILURES OF TELECOMMUNICATIONS, THE INTERNET, ELECTRONIC COMMUNICATIONS, CORRUPTION, SECURITY, LOSS OR THEFT OF DATA, VIRUSES, SPYWARE, LOSS OF BUSINESS, REVENUE, PROFITS OR INVESTMENT, OR USE OF SOFTWARE OR HARDWARE THAT DOES NOT MEET COMPANY’S SYSTEM REQUIREMENTS. THE ABOVE LIMITATIONS APPLY EVEN IF COMPANY AND ITS AFFILIATES AND SUPPLIERS HAVE BEEN ADVISED OF THE possibility OF SUCH DAMAGES. THIS AGREEMENT SETS FORTH THE ENTIRE LIABILITY OF COMPANY, ITS AFFILIATES AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE TAX COMPLIANCE SOFTWARE AND ITS USE.
11.5. Internet Connectivity; Disclaimer. Access to Web-based Applications, to electronic filing, and to Customer’s Online Account(s) is made available by Company (either itself or through a third party) via the Internet. Customer shall provide, at Customer’s own expense, all necessary hardware, applications and Internet connectivity necessary for such access. Customer acknowledges that the Internet is known to be unpredictable in performance and may, from time to time, impede access to Web-based Applications, to electronic filing and/or to Customer’s Online Account(s). Customer agrees that Company is not in any way responsible for any interference with Customer’s use of or access to Web-based Applications, to electronic filing and/or to Customer’s Online Account(s) arising from or attributable to the Internet and Customer waives any and all claims against Company in connection therewith.
11.6. Third-Party Products. ALL RIGHTS AND OBLIGATIONS WITH RESPECT TO THIRD-PARTY PRODUCTS SHALL BE GOVERNED BY THE AGREEMENTS PROVIDED BY SUPPLIERS OF SUCH THIRD-PARTY PRODUCTS. ALL THIRD-PARTY PRODUCTS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND BY COMPANY. CUSTOMER HEREBY RELEASES COMPANY FROM ALL LIABILITY AND RESPONSIBILITY WITH RESPECT TO THIRD-PARTY PRODUCTS.
11.7. Indemnification. Customer agrees to indemnify and hold harmless Company, its employees, officers, directors and Affiliates against any and all liability (including damages, recoveries, deficiencies, interest, penalties and reasonable attorney’s fees) to third parties (including any clients, IRS, attorney generals, and any taxing authorities) relating to: (a) Customer’s breach of any of its obligations, responsibilities, representations and/or warranties set forth in this Agreement; or (b) except to the extent of claims for which Company is liable as set forth in Section 11, Customer’s use of the Tax Compliance Software and related products and services, electronic filing, Refund Products and/or any other third-party software, application, product or service.
12.1. This Agreement is governed by and in accordance with the laws of Delaware, without regard to choice of law provisions. All disputes arising out of or relating to this Agreement will be instituted and prosecuted exclusively in a state or federal court located in Orlando, Florida, with both parties specifically consenting to extraterritorial service of process for that purpose.
12.2. Customer will pay all costs and expenses, including reasonable attorneys' fees, that Company incurs in any action to enforce Customer's obligations, including payment obligations, under this Agreement.
12.3. Customer agrees that, in the event Customer breaches or threatens to breach any of Sections 6.2.1, 6.2.3, or 9 of this Agreement, the damage or imminent damage to Company, its business and goodwill will be irreparable and extremely difficult to estimate, making any remedy at law or in damages inadequate. It is accordingly agreed that Company, in addition to any other remedy to which it may be entitled in law or equity, will be entitled to an injunction or injunctions to prevent breaches of the above referenced sections of this Agreement and to compel specific performance of this Agreement in accordance with its terms and conditions, without the need for proof of actual damages or the posting of a bond.
12.4. In addition to all other available remedies under this Agreement and applicable law, Customer agrees to pay Company for breaches of Section 6.2.1 a sum equivalent to the fees that Company would have been paid for the applicable tax returns and/or Refund Products that were processed by or through Customer in breach of this Agreement.
12.5. Company may refuse to renew Customer’s account for the following tax season if Customer materially breaches any obligation, representation or covenant provided herein.
13.1. Entire Agreement. This Agreement, Company’s Privacy Policy [found at www.utaxsoftware.com], any orders, addenda, and schedules constitute the entire agreement between Company and Customer regarding the matters herein. All prior agreements, both oral and written, between the parties on the matters contained in this Agreement are expressly canceled and superseded by this Agreement. Any order initiated as of the effective date of this Agreement, regardless of such order’s effective date, and notwithstanding anything to the contrary contained therein, shall be subject to this Agreement.
13.2. Agreement Changes. Company reserves the right to amend or modify this Agreement, in our sole discretion, at any time, and the modifications will be effective when the amended Agreement is sent to Customer in writing (including by email), are uploaded to the link to this Agreement in your Order, posted on Company’s website (www.utaxsoftware.com), within the EMP, or when we notify you by other means. Customer’s continued use of the Tax Compliance Software shall represent Customer’s agreement and acceptance of the amendments or modifications. Customer shall monitor the revision date/version number, and any change to its posted date/version number will be deemed notice to you that the terms have been updated.
13.3. Independent Contractors. Customer is an independent contractor, and while Company may refer to its customers as partners in the business sense, no legal partnership, agency or joint venture is created by this Agreement, and Customer will not represent itself as an agent or affiliate of Company or attempt to contractually bind Company. CUSTOMER IS AN INDEPENDENT CONTRACTOR AND AS SUCH IS NOT ENTITLED TO WORKER'S COMPENSATION BENEFITS. CUSTOMER IS OBLIGATED TO PAY FEDERAL AND STATE INCOME TAX ON ANY MONIES EARNED PURSUANT TO THIS AGREEMENT.
13.4. Affiliates. This Agreement will inure to the benefit of the parties, as well as their Affiliates, subsidiaries, and respective successors and assigns. All obligations of “Customer” shall include its Affiliates, and each of their directors, officers, employees, contractors, and agents, to the extent such entities are using the software, products or support provided hereunder, and Customer is fully responsible for all such entities’ compliance with all terms and conditions contained within this Agreement as applicable to such person’s activities and uses. “Affiliate” shall mean an entity that directly, or indirectly through one or more intermediaries, owns or controls, is owned or is controlled by, or is under common ownership or control with a Company or Customer, as applicable.
13.5. Communication and Marketing. You consent to accept and receive communications from us or directly from the Software Publisher, including e-mail, text messages, calls, and push notifications to the cellular telephone number you provide to us when you sign-up for an account or update the contact information associated with your account. Such communications may include, but are not limited to requests for secondary authentication, receipts, reminders, notifications regarding updates to your account or account support, and marketing or promotional communications. You acknowledge that you are not required to consent to receive promotional texts or calls as a condition of using the Tax Compliance Software or other products and services. Call and text message communications may be generated by automatic telephone dialing systems. Standard message and data rates applied by your cell phone carrier may apply to the text messages we send you. You may opt-out of receiving promotional email communications by following the unsubscribe options on such emails. You may opt out of any promotional phone calls by informing the caller that you would not like to receive future promotional calls. You may only opt-out of text messages from Company or the Software Publisher by replying STOP. You acknowledge that opting out of receiving communications may impact your use of the Tax Compliance Software or other products and services. For more information about how Company protects, uses, collects, and shares your information [including other marketing efforts], visit our Privacy Policy.
13.6. Assignment. This Agreement binds and inures to the benefit of the parties and their successors and permitted assigns, except that Customer may not assign this Agreement without the prior written consent of Company. Company may assign the Agreement to an Affiliate or in connection with a merger or consolidation involving Company (so long as the assignment is to the newly merged or consolidated entity) or the sale of Company or Company’s assets in part or in whole (so long as the assignment is to the acquirer).
13.7. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be illegal or unenforceable, the provision will be reformed and construed to be a valid, operative and enforceable provision while preserving its original intent. All of the terms in this Agreement are severable, and the invalidity of any part of this document does not render invalid the remainder.
13.8. Force Majeure. Company shall not be held liable for the failure to perform any obligation, or for the delay in performing any obligation, arising out of or connected with this Agreement if such failure or delay results from or is contributed to by any cause beyond its reasonable control including failures or delays caused by the act or omission of any governmental authority, fire, flood, failures of third-party suppliers, acts or omissions of carriers, transmitters, providers of telecommunications or Internet services, vandals, hackers or other event beyond its reasonable control.
13.9. No Construction against Drafter. Each of the parties hereto acknowledges that it has had the opportunity to be represented by independent counsel of its choice prior to entering into this Agreement. In construing this Agreement, no provision hereof shall be construed in favor of one party on the ground that such provision was drafted by the other.
13.10. Counterparts. This Agreement may be executed electronically (including by means of facsimile or click-through) and in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
13.11. Notices. Notices to Customer will be delivered to the most recent email or mail address provided to Company by Customer or through the EMP portal. All notices to Company must be in writing and delivered to CrossLink Tax Tech Solutions, LLC, Attn: Legal Department, 2000 N. Alafaya Trail, Suite #350, Orlando, FL 32826. All mail notices should be sent by trackable means and will be considered made on the date of delivery. Each party is responsible for giving the other party notice of a change of mailing or email address.
Thank you for choosing to trust uTax Software,
LLC and its Affiliates (collectively, the “Company”)
and the products and services offered within the uTax Solutions Platform
for the success of your business’s tax filing seasons. As part of your business’s relationship with Company,
you must agree to the terms and conditions of this Agreement on behalf of your
business. The business’s full acceptance
of this Agreement is required in order to be a
customer of Company in connection with its tax year products and services. If you accept this Agreement, you are representing
that you have the authority to accept it on behalf of the actual business entity
with whom Company has an account (the “Customer”).
1.
TAX COMPLIANCE SOFTWARE
1.1.
License.
The primary software offered by Company is Company-branded
tax compliance software (the “Tax Compliance Software”). However, Company may provide Customer with
other software, which along with the Tax Compliance Software will be collectively
referred to as “Licensed Software.” Licensed Software is licensed on a
non-exclusive and non-transferrable basis in a quantity and of the type as
specified on the sales order form issued by Company. Company charges a licensing fee to provide
access to the Licensed Software it distributes (the "License Fee").
1.2.
EULA. When installing or otherwise accessing the Tax
Compliance Software, and certain other Licensed Software, Customer will be
required to agree to the end user license agreement (the “EULA”), which will
provide the primary terms and conditions specific to the use of the software. Customer agrees to only use the Licensed
Software in full compliance with the terms of the applicable EULA, as further
qualified by the terms of this Agreement and the Company sales order statement.
1.3.
Disclaimer. Customer acknowledges that Company is a value-added reseller of the
professional Tax Compliance Software, and as such, Company itself makes no
representations or warranties about performance, availability or consistency of the Tax Compliance
Software. Furthermore, Company disclaims
all liability arising out of the performance, availability, or consistency of
the Tax Compliance Software. This
provision shall not affect Customer’s right to seek remedies available under
law and pursuant to the applicable EULA from any third-party company that
publishes the Licensed Software (the “Software Publisher”). Company reserves the right to substitute the
type of Licensed Software available to Customer year-over-year, so long as any
such substitution materially provides the same functionality as the Company branded
software that was used by Customer during the prior year. To fully support Customer’s business needs, it
may be necessary for Customer to separately purchase additional third-party
applications that it chooses to use in connection with the Licensed Software.
2.
SUPPORT
2.1.
Overview.
One of the benefits of being a Customer is the highly regarded technical support that Company
provides through the use of trained personnel during regular and seasonal
working hours. While Company will
provide technical support for the Tax Compliance Software, it does not and will
not provide professional tax, accounting or legal
advice, such as advice regarding the appropriate handling of tax and accounting
issues.
2.2.
Restrictions. Company may provide system requirement information upon request,
but Customer is solely responsible for preparing its computer systems for the Licensed
Software. Company will not provide
technical support for systems that do not satisfy the published minimum
requirements. Company values our support
personnel and does not tolerate verbal abuse or disrespect toward them; such
behavior may result in the immediate termination of Customer’s support
privileges. Company does not provide
support for any software, hardware or services that are not purchased directly through
Company. Company further reserves the
right to terminate its support services to Customer in the
event that Customer makes excessive support requests at a volume that
materially exceeds the average amount of service requests made by similarly
sized customers (determined by annual return volume); in lieu of support
termination, a support fee may also be implemented upon mutual agreement with
the Customer.
3.
REFUND PRODUCTS
3.1. Refund Product Providers. Company works with certain third-party providers to allow for the
offering of tax refund products such as refund transfers and refund advances (collectively
referred to as “Refund Products”) through the Tax Compliance
Software. Company will select authorized providers of Refund
Products and currently intends to work with Refund Advantage, Republic
Bank & Trust Company, Santa Barbara Tax Products Group and Refundo (the “Refund Product Providers”).
However, the available Refund Product
Providers are subject to change at any time in Company’s sole discretion. If Company decides to add or remove a Refund
Product Provider, we will notify our entire customer base of the change via
email or other mass notice and provide our customers with enrollment
instructions if a different Refund Product Provider needs to be selected. Customer is required to enter into a binding
agreement with the Refund Product Provider of its choice no later than the annual
enrollment closing date of your selected banking partner. Each Refund Product Provider will have applicable
policies and procedures that Customer is required to follow. Illinois
Customers Please Note:
Refund Advantage does not support a service bureau fee for Customers operating
in Illinois. Refund Product Providers
may institute other state-specific rules, over which
Company has no control. If Company has assigned a Service Bureau fee to your
site, and you elect to use Refund Advantage, Customer is advised that Company service
bureau fee may be moved to the Transmitter Add-On Amount field and Customer may
incur additional administrative fees as a result. Such fees will be displayed at the Company
Enterprise Management Portal (“EMP”) at the time of enrollment.
3.2.
Refund
Product Fees. Customer
acknowledges that certain fees may be charged to the taxpayer by the Refund
Product Provider, the Software Publisher, and Company for the Refund Products
that Customer sells. Customer will also
have an option within the EMP to set its own fees to be charged to the
taxpayer in connection with Refund Products. Please note that an additional admin fee (as
specified in the EMP) may be charged by the Software Publisher in connection
with the processing of any optional Transmitter Fee, Technology Access Fee, or
BP e-File Fee Add-On Amounts that Customer may choose to set. Fees charged to Customer and/or the taxpayer
by the Refund Product Provider and/or the Software Publisher are outside the
control of Company and subject to change within the sole discretion of each
such party. Any optional fees set by
Customer will be sent by the Refund Product Provider or Software Publisher to Company,
and Company will first apply any such fees received to any balance due on
Customer’s account, including, but not limited to electronic filing fees or
other deferred balances, and/or the license fee for following year’s tax
compliance software. Any balance after
all obligations to Company have been satisfied will be paid to Customer by July
15th. Customer may request
payment of its balance prior to July 15th, but in such cases, Company
will charge an early payment processing fee of $100.00 (although this fee will
be waived if Customer renews its tax compliance software license prior to or at
the time of the request).
3.3.
Compliance. Customer is responsible for obtaining the
taxpayer’s written consent, as required under IRS Code Section 7216, prior to
using and/or disclosing the taxpayer’s personal information for purposes of
issuing Refund Products, if and as required by the Tax Compliance Software and/or
Refund Product Provider. Customer must
provide each taxpayer that obtains a Refund Product with the Refund Product
price statement as generated through the Tax Compliance Software. If
Customer creates or uses any advertising for Refund Products, Customer must
ensure that such marketing materials comply with all applicable federal and
state laws and regulations. Company does
not provide legal advice concerning Refund Products, marketing
or compliance with local, state or federal laws. In
addition, certain states have regulations and requirements for preparers who
offer Refund Products that may change from time to time. It is Customer’s sole responsibility to be
aware of and in compliance with these individual state regulations.
4.
WEBSITES,
MOBILE APPS AND MARKETING MATERIALS
4.1.
Introduction.
Customer has the option, but not the
obligation, to work with METIK Marketing LLC (“METIK”), an Affiliate
of Company, for the creation of a custom web site and/or a mobile application
(collectively the “METIK Applications”), as well as for the
creation of certain marketing materials (“Design Services”). METIK Applications and Design Services are
provided at an additional charge. METIK
Applications are licensed as an annually renewable subscription with
maintenance fees after the first year. Customer
agrees that an annual fee for hosting and maintenance will apply for the METIK
Applications. For purposes of this
Agreement, METIK Applications are also included under the definition of
Licensed Software.
4.2.
Ownership. Customer shall obtain no ownership in the intellectual property of
the METIK Applications and Design Services, including any source code, graphics,
photos, mock-up files or written copy contained therein (except for Customer
Information, as defined in Section 4.3).
Customer must not use any of the METIK Applications or any content
supplied or created by METIK after the Term, unless Customer
has renewed the applicable applications with METIK. Customer must not modify,
copy, duplicate, reproduce, license or sublicense content, or transfer or
convey the source code or other work product of any METIK Applications or
Design Services to anyone without the prior written consent of METIK. Customer will be granted a perpetual license
to use the final deliverables of any fully paid Design Services order, provided
that such deliverables may not be modified or sublicensed by Customer in any
way without written permission from METIK.
Customer agrees that any actions in violation of the foregoing will be deemed
a material breach of this Agreement and subject to immediate termination
without refund. Unauthorized
reproduction and distribution will also be considered a violation of METIK’s
rights under US law and subject to all available remedies under the law.
4.3.
Customer Information. As between Company and Customer, all of Customer’s taxpayer client
information is owned by Customer. Company will not directly solicit any such taxpayer
clients owned by Customer. All content
provided by Customer for use in the METIK Application(s) will be owned by
Customer and Customer represents that it will not provide any content,
graphics, photos or other media for use in the METIK
Application(s) unless such materials are either owned or properly licensed for
such use by Customer. All such
information owned by Customer is defined as “Customer Information.”
4.4.
Logos. Notwithstanding Section
4.2, full ownership in any logo(s) designed by METIK for Customer shall
automatically transfer to Customer upon full payment by Customer for such
logo(s). METIK shall retain the right to
display logos and other graphics from the METIK Applications as examples of its
work within its portfolio, which may be publicly displayed by METIK,
electronically or otherwise.
4.5.
Copyright Notices. All METIK Applications will contain a
copyright/legal statement with a link to Company or METIK’s contact
information. Customer understands that any METIK Applications submitted to
Google Play and/or the Apple App Store will contain copyright information about
METIK.
4.6.
Domain Names.
Customer is required to provide or else register and purchase an
Internet domain name of its choice through a domain registrar (e.g.,
GoDaddy.com, Gandi.net and Name.com) for any METIK Application involving a
custom website. Customer will be the
sole owner of the domain name and will be solely responsible for maintaining
and renewing the domain name registration.
Customer agrees to work with METIK or to otherwise grant it access to
the domain name registration account for purposes of directing the domain name
to METIK’s hosting servers.
4.7.
Mobile App Disclosure.
Please note that the iOS version of the mobile app will be published in
the Apple AppStore as the “TaxMobileApp” and will
require your customers to enter a code to access Customer’s version of the
app. If Customer prefers to have its own
unique app on the Apple App store, this is available but Customer must register
for its own Apple Developer Account (currently a $99 registration fee) and
provide information such as a DUNS number (see Organization requirements at https://developer.apple.com/programs/enroll/). There are currently no such restrictions
with the Android version of the app and the Google App Store.
4.8.
Project Completion. Custom projects will require Customer to work
cooperatively with METIK to complete the project in a timely manner. Customer
must provide all requested information and responses within two (2) business
days or less in order to avoid delays. The parties agree to work together to expeditiously
complete the project within the delivery time frame provided by METIK on the sales
order form or otherwise. Customer’s delay or failure to provide required
content or approvals will not be a valid reason for a refund. Customer must provide all requested content
prior to METIK being able to provide proofs for approval.
4.9.
Project Delivery. METIK Applications will be published
explicitly to METIK’s hosting service provider, upon approval by Customer of
the final proof. Customer agrees that once the project has been published, any
changes requested will be considered as maintenance and additional fees may
apply. Deliverables requiring the
production of printed work product (e.g., banners, signs, etc.) will require
Customer’s final written approval and payment before delivery.
4.10.
Payment Terms. Upon Customer’s election to obtain METIK
Applications, Customer agrees to render a 50% non-refundable deposit of the
cost for the specific services to be performed, with final payment due
immediately upon delivery of the completed project. Customer agrees that should a project be
stopped for any reason before completion, the project files or content will not
be transferred to Customer and METIK will remain the respective owner. METIK reserves the right to remove any
content should Customer default on payments associated with the METIK
Applications services provided. Pursuant
to Section 4.9, Design Services must be paid for in full before any
deliverables will be printed and delivered to Customer.
4.11.
Term. Customer
agrees that all METIK Applications are provided only during such time that
Customer is under agreement with Company in connection with the Tax Compliance Software
offered by Company. If this Agreement or use of the Tax
Compliance Software expires or otherwise terminates, METIK will have the right
to remove, disable and/or delete any METIK Applications from the server and
from Google Play and the Apple App Store without further notice. Customer acknowledges that no Customer
Information located within any of the METIK Applications will be provided to
Customer after such termination and Customer is responsible for exporting any
customer content through the feature provided on the content management system
prior to termination. METIK will delete
all Customer Information shortly after termination.
4.12.
IP Indemnification. Subject to the other terms and conditions set
forth herein, METIK agrees to defend Customer at METIK’s sole cost and indemnify
Customer (by paying for damages finally awarded against Customer or any amounts
payable in any settlement entered into in compliance with this Agreement) from
and against any claims, demands, actions or proceedings by any third parties
alleging that Customer’s use of the METIK Applications as provided and
permitted herein infringes or violates such third-party’s US intellectual
property rights; provided that: (i) METIK is notified
promptly in writing of the claim; (ii) METIK controls the defense, settlement
and approval of the claim; and (iii) Customer cooperates reasonably, assists
and gives all necessary authority to METIK and reasonably required information
in connection with the defense or settlement of the claim. METIK’s obligations under this section will
not apply if and to the extent that they arise from or relate to: (i) the access or use of the METIK Application in any manner
other than as provided and permitted by METIK hereunder and as required to be
used by Customer hereunder; (ii) the use of the METIK Applications in
combination with any intellectual property, services, reports, documentation,
hardware, software, data or technology not supplied by METIK Applications; or
(iii) any data or information, or other intellectual property supplied by
Customer or any third-party not affiliated with METIK. If any METIK Application becomes, or in
METIK’s opinion, is likely to become, the subject of a third-party claim
covered by METIK’s indemnification obligations under this section, then METIK
may, in its sole discretion and at its sole cost and expense: (i) procure for Customer the right to continue using such
METIK Application; (ii) modify the infringing portion of the METIK Application
so as to render it non-infringing but still appropriate for its intended use
under this Agreement; or (iii) replace the infringing portion of the METIK
Application with non-infringing items with substantially similar
functionality. If METIK reasonably
determines that none of the foregoing is commercially practicable, then METIK
may elect to terminate the applicable services and grant Customer a refund of
the fees paid for the affected METIK Application less an allocation for use
made by Customer prior to the termination.
This section states the sole and exclusive remedy of Customer with
respect to any actual or claimed infringement or other violation of any third-party’s
intellectual property rights under this Agreement. Furthermore, Customer agrees to defend METIK and
its officers, directors, employees and agents, at Customer’s sole cost and to indemnify
METIK (by paying for damages finally awarded against METIK or any amounts
payable in any settlement entered into in compliance with this Agreement) from
and against any claims, demands, actions or proceedings by any third parties
arising out of: (i) the access or use of the METIK
Application in any manner other than as provided and permitted by METIK
hereunder and as required to be used by Customer hereunder; (ii) the use of the
METIK Applications in combination with any intellectual property, services,
reports, documentation, hardware, software, data or technology not supplied by
METIK Applications; or (iii) any data or information, or other intellectual
property supplied by Customer or any third-party not affiliated with METIK.
4.13.
Territory. The
METIK Applications are provided solely for use in connection with the promotion
of Customer’s US based tax preparation services. Consequently, the METIK Applications are
intended to only be accessed within the United States by US taxpayers. METIK provides no representations or support
regarding use, operation, legal compliance or security
of the METIK Applications outside of the United States.
4.14.
Other
Terms. METIK is an Affiliate of the Company, and as
such, the terms of this Agreement, and the benefits, disclaimers, obligations and rights of the party referred to as “Company”
under this Agreement, shall apply to METIK severally, and not jointly, for any
services or actions that are specifically performed by METIK.
5.
THIRD PARTY PRODUCTS
5.1.
Protection Plus and iProtect. Company serves as a third-party distributor of certain products and
services provided by third parties (“Third-Party Service Providers”),
including, but not limited to, Protection
Plus audit assistance products from Tax Protection Plus, LLC (“TPP”),
iProtect identity theft products from
iProtect, LLC (“iProtect”) and credit assistance services from Forever Good
Credit (“FGC”). Company may
discontinue a Third-Party Service Provider offering in its sole discretion at
any time upon notice to Customer or otherwise terminate Customer’s ability to
offer these products and services upon request by the Third-Party Service
Provider. Customer will hold Company harmless
for any damages, losses or harm arising out of the sale and purchase of these products
and services, but Customer may seek remedy for any such harm from the Third-Party
Service Provider. Customer may be
required to enter into separate written agreements with the Third-Party Service
Provider prior to being able to offer the applicable product or service.
5.2.
Third
Party Product Fees. In the event a fee for a third-party product is collected directly
by the Customer, Customer authorizes Company to collect the fee on behalf of
the applicable Third-Party Service Provider by using any existing credits
Customer may have on account with Company.
Except as expressly stated in
this Agreement, Company does not provide any rebates or other payments for or
on behalf of a Third-Party Service Provider.
If allowed by Third Party Provider, the data entry and accuracy of any mark-up
amounts selected by the Customer during enrollment at EMP or directly via
Billing Setup within the Tax Compliance Software program, are the sole
responsibility of the Customer.
5.3. Third
Party Product Limitations.
Customer is advised that the ability to add mark-up amounts to a product
transaction for their customer is at the sole discretion of the Third-Party
Provider and may not be available. In addition, some Third-Party Products may
not be supported by a specific Company Refund Product Provider.
6.
REPRESENTATIONS
6.1.
Company. Company represents that:
6.1.1.
it
has all legal rights and authority to enter into this Agreement, and by
entering into this Agreement Company will not be violating any third-party
agreements that would otherwise prohibit it from fulfilling its obligations hereunder;
6.1.2.
it
has the right to grant to Customer the rights in the software, products and
services that the Company provides to Customer pursuant to this Agreement and
the applicable order form(s);
6.1.3.
it
has not inserted into any of its software any virus or similar code to erase data;
6.1.4.
it
will use commercially reasonable efforts to provide its services in a
professional manner in compliance with all applicable laws; and
6.1.5.
it
will comply with all laws, regulations, policies and
procedures applicable to the operation of its business.
6.2.
Customer. Company depends on its customers to honor the commitments required
under this Agreement and to operate in a professional manner. In furtherance of this expectation, Customer makes
the following representations and covenants:
6.2.1.
Exclusivity. During the Term of this Agreement, Customer represents,
warrants and covenants that it will only use the Tax
Compliance Software provided by Company for any and all tax returns prepared
and transmitted by Customer, and Customer will only process and transmit Refund
Products through a Refund Product Provider who is approved by Company in
writing. Customer will not take any
action to circumvent this exclusivity. In the event that Company discovers Customer is using an
unauthorized Refund Product Provider and/or tax compliance software not
obtained through Company, Customer agrees that Company may charge, or otherwise
obtain from Customer, a fee per tax return as executed on the Terms and
Conditions located on your sales order form and bound by this Agreement, and a
separate $39.95 fee per funded Refund Product that was filed in connection with
such unauthorized product. Customer
agrees that the fees represent a fair and reasonable approximation of the harm
that would result from Customer’s breach of its exclusivity obligations
hereunder.
6.2.2.
Engagement. Customer has all legal rights and authority
to enter into this Agreement, and by entering into this Agreement Customer will
not be violating any third-party agreements that would otherwise prohibit it
from fulfilling its obligations hereunder. Customer will provide only accurate,
current and complete information on any forms,
applications or other questionnaires provided by Company, a Refund Product
Provider or a Third-Party Service Provider, and shall keep all contact
information current by updating Company of any changes. Customer is entering into this Agreement for
the sole purpose of offering commercial tax compliance services to its taxpayer
clients and will not use its relationship with Company for a surreptitious purpose
of obtaining information from or about Company, its third-party partners and/or
their products and services.
6.2.3.
License
Use. Customer
will not use, or permit others to use, any software, products or services
offered by Company in a manner or to an extent that exceeds Customer’s
authorized use as specified in the sales order form(s) entered
into by Customer. Customer will not modify, create derivative works
from, or sublicense any software or products provided to it by Company, nor
reverse engineer, decompile, disassemble, or otherwise attempt to derive any
source code from such software.
6.2.4.
Compliance. Customer will comply with all applicable
policies, procedures and agreements, including Refund
Product Provider guidelines and any software EULA or product agreement. Customer
will comply with all laws, regulations, policies and
procedures of any government agency. Customer is not, nor has ever been,
subject to federal, state or regulatory enforcement
proceedings relating to tax compliance and/or Refund Products. Customer and Customer’s EFIN are currently in
good standing with the IRS and Customer acknowledges it is their sole responsibility for maintaining,
monitoring and protecting their EFIN and e-Services
account as outlined in IRS Publication 3112. Customer will not use any
software, products or services provided by Company or its third-party partners
in any manner that could be deemed unlawful or potentially harmful. Customer will not misrepresent to its clients
the nature of any products or services offered in connection with this
Agreement.
6.2.5.
Data
Security. Customer
has implemented and will maintain reasonable security measures to ensure the
protection of all taxpayer information, including all taxpayer data security
and protection laws outlined by the Federal Trade Commission – Safeguards
Rule and as outlined in IRS Publication 1345 - Handbook for Authorized IRS
e-file Providers of Individual Income Tax Returns and IRS Publication 4557 –
Safeguarding Taxpayer Data.
In addition to any reporting
requirements as outlined by the IRS and Individual State Tax Authorities,
Customer will immediately notify Company if Customer reasonably believes that a
breach of data has occurred.
6.2.6.
Non-Compete. During
the Term and for a period of two (2) years thereafter, Customer shall not
engage in, act as, open, work for, undertake planning, conspire with others to
create, or own shares in, any electronic filing service bureau which directly
competes with Company or its successors. Customer also agrees not to employ any of Company’s
(or its successors) employee(s) during the Term or for a period of two (2)
years after the termination of this Agreement.
7.
PAYMENT
& FEES
7.1.
Pricing
and Payments. All products and services are sold by Company at
the then-current price established at the time of purchase. Customer will pay Company in accordance with
the sales order form. Unless the parties
agree otherwise in a sales order form, Company reserves the right to revise any
of the fees it charges in connection with tax returns and Refund Products upon
notice to Customer at any time during the Term prior to the official IRS
starting date of E-Filing for the current tax season. . All
payments must be made with one of the following methods of payment:
·
A
valid credit card;
·
A
valid debit card;
·
A
valid ACH bank draft authorization;
·
The
Cash Saver Program provided by Company
(for the software only); or
·
Fees
accrued in connection with the sale of Refund Products.
IN ADDITION TO THE FOREGOING, CUSTOMER MUST
COMPLETE ENROLLMENT IN THE COMPANY ENTERPRISE MANAGEMENT PORTAL (EMP) AND
PROVIDE AUTHORIZED PAYMENT INFORMATION PRIOR TO THE TRANSMISSION OF ANY RETURNS
THROUGH THE TAX COMPLIANCE SOFTWARE.
FAILURE TO PROVIDE VALID PAYMENT INFORMATION IN THE EMP AT ANY TIME WILL
RESULT IN IMMEDIATE SUSPENSION OF ALL TRANSMISSION AND SUPPORT SERVICES. CUSTOMER GRANTS COMPANY THE RIGHT TO USE THE
PAYMENT INFORMATION PROVIDED BY CUSTOMER TO COLLECT ALL FEES AND PAYMENTS THAT
ARE DUE (INCLUDING, BUT NOT LIMITED TO, CHARGES AND FEES RELATED TO ELECTRONIC
FILING FEES, TAX COMPLIANCE SOFTWARE, BUSINESS SOFTWARE, BUSINESS RETURN
CREATION FEES, METIK APPLICATIONS, THIRD PARTY SERVICE PROVIDERS AND REFUND
PRODUCT PROVIDERS).
7.2.
Late
Payments. A late
payment charge of the lesser of 1½% per month or the highest rate allowed by
applicable law may be applied to any outstanding balances until paid. Failed payments (e.g., insufficient funds,
incorrect account numbers, etc.) are subject to a service fee of a minimum of $20
for each occurrence or the maximum amount permitted by law. Company shall also have the right to restrict
Customer’s account from access to the electronic filing center if any payment becomes
overdue.
7.3.
Electronic Filing Fee. Electronic filing fees are charged to
Customer in connection with all tax returns that are electronically filed
through the Tax Compliance Software. Electronic
filing fees will be specified in the sales order form and are invoiced on a biweekly
basis for the months of February, March and April and
on a monthly basis for all other months.
7.4.
Business Return Creation Fee. If you require access to the business return
functionality within the Tax Compliance Software, you will be charged an
additional license fee as set forth on your sales order form. The business returns that you create will
incur a per-return business return creation fee. Note that the business return creation fee is
triggered by creation of the business return and not by electronic
filing. No additional electronic filing
fee will be charged in connection with business returns; the electronic filing
fee is included within the business return creation fee. Your sales order form will specify the amount
of the business return creation fee, as well as whether your particular
business software license package includes any credits toward your business
return creation fees. Business return
creation fees are invoiced on a biweekly basis for the months of February, March and April and on a monthly basis for all other months.
7.5.
Remote Signature Fee.
A fee (currently
$5) will be charged per completed remote signature per SSN in connection with
use of the electronic remote signature functionality within the Tax Compliance
Software. For example, the current fee
is $5 on a Single or HoH return, and a max of $10 if both spouses use
remote sign on a MFJ return. The Remote
Signature Fee is subject to change at the discretion of the Software Publisher.
7.6.
Additional Fees. Company makes every effort to disclose in
this Agreement and/or in your sales order form all fees that will be charged in
connection with its services and your use of the Tax Compliance Software and
other third-party products and services.
However, certain third-party fees, including fees associated with
certain returns prepared through the Tax Compliance Software, may not be known
by Company as of the date of your sales order.
If additional fees are required by the Software Publisher, the Refund Product
Providers or the Third-Party Product & Service Providers, Company will
provide Customer with notice of such additional fees within a reasonable time
following Company’s own receipt of notice of the fees. You acknowledge that third-party fees are outside
the control of Company and Company will not be liable or otherwise responsible
for any such fees, regardless of when any such fee is instituted.
7.7.
Taxes. Customer
will pay any applicable taxes relating to this Agreement, other than taxes
based on Company’s income and any franchise-related taxes.
7.8.
Cash Saver Program. Customer may elect to defer the full payment
of the Tax Compliance Software by enrolling in the Cash Saver Program. The Cash Saver Program is only
available in connection with the purchase of Tax Compliance Software and not
available in connection with any other purchases from or payments to Company. The Cash Saver Program is not a loan,
and no interest is charged. Participation
in the Cash Saver Program is voluntary and will be notated on Customer’s
sales order form. The Cash Saver
Program requires a $50.00 administrative setup fee and a specified down
payment to be made at the time of purchase.
The deferred payments will be collected through certain fees charged in
connection with each approved Refund Product that Customer sells. Customer must enroll with an approved Refund
Product Provider to participate in the Cash Saver Program. See Section 3 for additional terms and
information about the offering of Refund Products. If the specified fees collected by Company in
connection with Customer’s Refund Product sales is insufficient to pay-off the
outstanding account balance before March 15 of the current tax season, then the
remaining balance will become due immediately, and Customer agrees the balance may
be collected by Company on March 15 of the current tax season, through use of
the other payment methods referenced in Section 7.1. Company shall have the right to suspend or
terminate Customer’s account and refuse any use of the services and electronic
filing center access until payment in full is received.
7.9.
Payment Collection Through Refund Product
Provider. In
addition to the other methods of payment collection provided for in this
Agreement, Company may also seek uncollected amounts owed to Company by
requesting such amounts from Customer’s Refund Product Provider. BY ENTERING INTO THIS AGREEMENT, CUSTOMER
HEREBY AUTHORIZES COMPANY TO REQUEST FROM CUSTOMER’S REFUND PRODUCT PROVIDER,
AND HERBY AUTHORIZES CUSTOMER’S REFUND PRODUCT PROVIDER TO PAY TO COMPANY, ANY
AMOUNTS OTHERWISE DUE TO CUSTOMER BY THE REFUND PRODUCT PROVIDER AND ACTUALLY
OWED TO COMPANY BY CUSTOMER. Company
agrees to use this remedy only if Company is unsuccessful in collecting such
overdue payment after having made a commercially reasonable effort to collect the
overdue payment through the other payment methods specified in Section 7.1.
8.
Disclaimers
8.1.
ALL
SOFTWARE, PRODUCTS, SERVICES AND SUPPORT ARE PROVIDED ON AN "AS IS,"
"AS AVAILABLE" BASIS. COMPANY DISCLAIMS ALL LIABILITY FOR ANY THIRD-PARTY
SERVICE PROVIDER PRODUCTS INCLUDING, BUT NOT LIMITED TO, THE TAX COMPLIANCE
SOFTWARE, REFUND PRODUCTS, TAX PROTECTION PLUS, IPROTECT, AND FOREVER GOOD
CREDIT PRODUCTS. OTHER THAN AS
EXPLICITLY STATED IN THIS AGREEMENT, COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS
OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, COMPLETENESS, CURRENTNESS,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT WARRANT THAT THE SOFTWARE,
PRODUCTS, SERVICES AND SUPPORT WILL BE UNINTERRUPTED OR ERROR-FREE AND
DISCLAIMS ANY WARRANTY OR REPRESENTATION REGARDING AVAILABILITY OF A SERVICE,
SERVICE LEVELS OR PERFORMANCE.
8.2.
Data
Breach. Company is not responsible for any loss caused
due to any data breach or hacking of its servers. Customer agrees to hold harmless Company for
any claims arising because of an interception of Customer’s data by a third-party
while the data is being sent over interconnected local and wide-area networks.
8.3.
Preparation
of Returns. Regardless
of the services and support provided by Company, Customer will remain
solely responsible for the proper preparation, accuracy (including
computational accuracy), and review of all tax returns created by Customer
while using the Licensed Software provided by Company.
8.4.
Product
Selection. Customer is
solely responsible for the selection of the appropriate software, products and services to satisfy Customer’s business needs,
as well as for selecting, obtaining and maintaining all hardware, software,
computer capacity, Internet service, program and system resources and other
equipment and utilities needed to use the software, products and services
provided by Company.
8.5.
Modifications
and Functionality. Company
and its third-party partners may add additional functionality as enhancements
to its software, products and/or services at no additional fee, or as one or
more separate products or services for an additional fee. Company reserves the right to discontinue
and/or replace the Licensed Software and other products or services in Company’s
sole discretion, for any reason including, but not limited to the fact that the
product or service has a superior replacement, is no longer economically
feasible or has become technologically out of date.
9.
PROTECTION
OF PROPRIETARY RIGHTS AND CONFIDENTIAL INFORMATION
9.1.
Proprietary Rights. All
products, software, services and support are
proprietary to Company, the Software Publisher and/or the Third-Party Service
Providers, as applicable, and may include copyrighted works, trade secrets, or
other materials created at great effort and expense. Customer will not in any way contest the
validity of the rights in/or ownership of any of its products and services or
documentation provided under this Agreement. Customer will reproduce Company’s copyright
and proprietary rights legend on all copies of materials that Customer is
permitted to reproduce or distribute. Except
as stated in Section 4.4, neither party will use the tradenames, trademarks or service marks of the other party in any
news release, publicity, advertising, or endorsement without the prior
written approval of the other party. Customer shall not disclose the negotiated
pricing or terms of this Agreement, or of any sales order form, to any third-party.
9.2.
Confidential Information. Each
party (“Recipient”) will treat all information provided by the
other party (“Discloser”) that Discloser designates in writing to
be confidential in the same manner as Recipient treats its own confidential
information; provided that i) Recipient may share
such information with its employees and third-party service providers, with a
need to know and/or in order to fulfill the obligations pursuant to this
Agreement (“Representatives”), in furtherance of the provision of
the products and services hereunder, that are subject to confidentiality
obligations substantially as restrictive as those set forth in this Section and
ii) Recipient assumes responsibility for such employee’s and third-party
service provider’s use of such information. Discloser represents and warrants that it has
all necessary legal rights, title, consents and
authority to disclose such confidential information to Recipient. Notwithstanding such confidential status,
Customer agrees that Company may, without identifying Customer as the source of
such information, use information provided by Customer to create, update,
merge, analyze, maintain or enhance its database of information,
as permitted by law. Company will not
transfer, disclose, sell or otherwise distribute such
information in the form supplied by Customer to any third-party (other than its
Representatives) without Customer's consent, unless Company is required by law
to do so. Confidential information shall not include information that (i) is or becomes a part of the public domain through no act
or omission of Recipient; (ii) was in Recipient’s lawful possession prior to
Discloser’s disclosure to Recipient; (iii) is lawfully disclosed to Recipient
by a third-party with the right to disclose such information and without
restriction on such disclosure; or (iv) is independently developed by Recipient
without use of or reference to the confidential information.
10.
TERM
AND TERMINATION
10.1.
Term. The Term of this Agreement shall run from the
date of Customer’s acceptance of this Agreement until October 31, 2023 (the
“Term”).
10.2.
Cancellation and Refund Policy. Upon the written request of Customer received
by Company within 72 hours of the date of Customer’s acceptance of this
Agreement, Company shall refund all license fees paid by Customer under the
order, less an 18% order processing fee. CUSTOMER UNDERSTANDS AND AGREES
THAT COMPANY SHALL HAVE INCURRED EXPENSES IN ANTICIPATION OF ITS PERFORMANCE
UNDER THIS AGREEMENT AND THAT NO REFUND SHALL BE MADE FOR ANY REASON MORE THAN
72 HOURS OF CUSTOMERS ACCEPTANCE OF THIS AGREEMENT WITH COMPANY. MOREOVER, THE SALES ORDER FORM ISSUED BY COMPANY,
ALONG WITH THIS AGREEMENT, IS A BINDING CONTRACT AND COMMITMENT BY CUSTOMER TO
PAY THE AMOUNT LISTED IN THE ORDER STATEMENT; CUSTOMER SHALL HAVE 72 HOURS TO
CANCEL OR NOTIFY COMPANY OF ANY PRICING ERRORS IN THE ORDER STATEMENT. If the software is installed before the 72-hour
cancellation period expires, Customer will not qualify for a refund. All return associated filing fees are
non-refundable and accrue at the time of the filing.
10.3.
Prohibited
Refund Methods. Customer expressly agrees to not use credit
card charge-back as a means of terminating this Agreement. Should Customer
attempt to terminate this Agreement through any financial recovery methods
offered by a financial institution, Company reserves the right to charge
Customer a $50 fee in addition to all other remedies available to Company under
this Agreement.
10.4.
Termination.
10.4.1.
In the event of material breach of Sections
6.2.1 through 6.2.6, Company may immediately terminate this Agreement or, in its sole discretion, Company may
suspend Customer’s use of any and all software, products and/or services and notify
Customer. While Company will make good
faith efforts to reactivate access to services upon Customer remedying any
suspension, Company makes no guarantees regarding the timing of
reactivation. Customer shall be required
to cure any such breach within three (3) business days. If
Customer fails to regain compliance within such time, Company may, in its sole
discretion, terminate this Agreement for cause, in addition to any other rights
or remedies Company may have. In the
event of material breach of any other part of this Agreement by Customer or Company,
the non-breaching party may terminate this Agreement if such breach is not
cured within thirty (30) days of written notice of breach.
10.4.2.
Except as prohibited by law, Company reserves
the right to refuse or discontinue software, products and
services to any Customer without cause and provide a full refund of any amounts
paid by Customer minus the value of any software, products and services
utilized. Customer acknowledges that Company must have this right in order to address business or legal changes outside its
control or to preserve the integrity of Company’s reputation within the
industry and fulfill any requirements to prevent and/or prohibit fraud. This section does not limit Company’s right
to discontinue software, products and services without refund granted in other sections
of this Agreement.
10.4.3.
If, in the sole judgment of Company, a change by
the Software Publisher or a change in the competitive, legislative, or
regulatory environment makes a current Licensed Software or service offering of
Company no longer commercially feasible, profitable or practical, Company reserves
the right, in its sole discretion to: (i) terminate
this Agreement; (ii) replace the Licensed Software with a different software,
provided that the replacement provides
similar functionality ; and/or (iii) adjust its fees and/or pricing to
offset the financial impact of any such change.
10.4.4.
Customer agrees to hold harmless Company for
any claim that may arise out of Company’s termination of a Customer's software,
products and/or services as permitted under this Agreement.
10.4.5.
Customer acknowledges that the following will
not be grounds for its termination of this Agreement: (i)
Customer’s reliance on future functionality of the Licensed Software; (ii)
system requirement changes in the Licensed Software; (iii) Company’s
replacement of the Licensed Software to a reasonably comparable alternative
software; or (iv) reasonable delays in the delivery of the Licensed Software (note,
the Tax Compliance Software will typically be delivered no later than January
of the applicable tax season).
10.5.
Effect of Termination. Termination of this Agreement for any reason
will result in a termination/suspension of all licenses, services
and outstanding orders. Customer can
ensure continuation in services by renewing the Tax Compliance Software prior
to the expiration of the Term. If,
without Company’s written permission or as permitted hereunder, Customer
continues to use any software, products and/or services after the applicable
license has terminated, in addition to any other remedies available to Company for
such breach of the Agreement, Customer will be liable to Company for the
undiscounted fees (including annual fees for software generally licensed on an
annual basis) for such software, products and/or services in effect on the date
of such termination or expiration.
10.6.
Survival. The
provisions set forth in Sections 1.3, 4.2, 4.4, 4.9, 4.10, 6.2.6, 8.1,
8.2, 9.1, 9.2, 10.3, 10.4, 10.5, 10.6, 11, 12 and 13 will survive the
termination of this Agreement.
11.
LIMITATION
OF LIABILITY; INDEMNIFICATION
11.1.
COMPANY
SHALL NOT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT,
OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING LOST PROFITS, LOST DATA, LOST
REVENUES, AND LOSS OF BUSINESS OPPORTUNITY, WHETHER OR NOT SUCH PARTY WAS AWARE
OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF THESE DAMAGES.
11.2.
COMPANY’S MAXIMUM LIABILITY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN
CONTRACT, TORT, BREACH OF WARRANTY OR OTHERWISE), WILL NOT EXCEED THE TOTAL
AMOUNT DIRECTLY PAID TO COMPANY BY CUSTOMER HEREUNDER DURING THE 12-MONTH
PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH LOSS, DAMAGE, INJURY,
CLAIM, COST OR EXPENSE OCCURRED.
11.3.
Notwithstanding anything to the contrary, the
exclusions and limitations set forth in Section 11.1 and Section 11.2
above shall not apply with respect to Company’s obligations under Section 11.4.
11.4.
General Indemnification.
During the Term and for two years thereafter, each Party (the “Indemnifying
Party”) will defend, indemnify and hold harmless the other Party, its
officers, directors, employees, successors and assigns (collectively, the “Indemnified
Parties”), in respect of any losses, damages, liabilities and expenses
(including reasonable attorneys’ fees) (collectively, “Damages”)
incurred or suffered by any of the Indemnified Parties with respect to claims
instituted by any third-party, including a federal or state government or
agency (a “Third-Party Claim”) resulting from (a) any fraud or
material misrepresentation of the Indemnifying Party, or (b) any material
breach by the Indemnifying Party of any of its obligations, representations,
covenants or other commitments pursuant to this Agreement. In connection with any Third-Party Claim, the
Indemnifying Party may defend the Indemnified Party against the Third-Party
Claim with counsel reasonably satisfactory to the Indemnified Party so long as
(i) the Indemnifying Party provides the Indemnified
Party with evidence reasonably acceptable to the Indemnified Party that the
Indemnifying Party will have the financial resources to defend against the Third-Party
Claim and fulfill its indemnification obligations hereunder, (ii) the Third-Party
Claim involves only money damages and does not seek an injunction or other
equitable relief, (iii) settlement of, or an adverse judgment with respect to,
the Third-Party Claim is not, in the good faith judgment of the Indemnified
Party, likely to establish a precedent adverse to the continuing business
interests or the reputation of the Indemnified Party, (iv) no conflict of
interest exists between the Indemnifying Party and the Indemnified Party, and
(v) the Indemnifying Party conducts the defense of the Third-Party Claim
actively and diligently. In the event
any of the conditions above is or becomes unsatisfied, however, (A) the
Indemnified Party may defend against, and consent to the entry of any judgment
or enter into any settlement with respect to, the Third-Party Claim in any
manner it reasonably may deem appropriate (and the Indemnified Party need not
consult with, or obtain any consent from, the Indemnifying Party in connection
therewith), (B) the Indemnifying Party will reimburse the Indemnified Party for
the costs of defending against the Third-Party Claim (including reasonable
attorneys’ fees and expenses), and (C) the Indemnifying Party will remain
responsible for any Damages the Indemnified Party may suffer resulting from the
Third-Party Claim, to the fullest extent provided in this section. In any event, the Indemnified Party may
retain separate co-counsel at its cost and participate in the defense of the Third-Party
Claim and the Indemnifying Party will not consent to the entry of any judgment
or enter into any settlement with respect to any Third-Party
Claim without the prior written consent of the Indemnified Party, which shall
not be unreasonably withheld or delayed. This foregoing indemnification
provision shall constitute the Indemnified Parties’ sole and exclusive remedy,
and the Indemnifying Party’s sole and exclusive liability, for monetary damages
in respect of the matters indemnified under this section.
12.
CHOICE
OF LAW; DISPUTES; REMEDIES
12.1.
This Agreement is governed by and in
accordance with the laws of Delaware, without regard to
choice of law provisions. All
disputes arising out of or relating to this Agreement will be instituted and
prosecuted exclusively in a state or federal court located in Tacoma,
Washington, with both parties specifically consenting to extraterritorial
service of process for that purpose.
12.2.
Customer will pay all costs and expenses,
including reasonable attorneys' fees, that Company incurs in any action to
enforce Customer's obligations, including payment obligations, under this
Agreement.
12.3.
Customer agrees that, in the event Customer breaches
or threatens to breach any of Sections 6.2.1, 6.2.3, 6.2.6, or 9 of this
Agreement, the damage or imminent damage to Company, its business and goodwill
will be irreparable and extremely difficult to estimate, making any remedy at
law or in damages inadequate. It is
accordingly agreed that Company, in addition to any other remedy to which it
may be entitled in law or equity, will be entitled to an injunction or
injunctions to prevent breaches of the above referenced sections of this
Agreement and to compel specific performance of this Agreement in accordance
with its terms and conditions, without the need for proof of actual damages or
the posting of a bond.
12.4.
In addition to all other available remedies
under this Agreement and applicable law, Customer agrees to pay Company for
breaches of Section 6.2.1 a sum equivalent to the fees that Company would
have been paid for the applicable tax returns and/or Refund Products that were
processed by or through Customer in breach of this Agreement.
12.5.
Company may refuse to renew Customer’s account
for the following tax season if Customer materially breaches any obligation,
representation or covenant provided herein.
13.
MISCELLANEOUS
13.1.
Entire Agreement. This Agreement, any orders, addenda, and schedules constitute the entire agreement between Company and Customer regarding the matters herein. All prior agreements, both oral and written, between the parties on the matters contained in this Agreement are expressly cancelled and superseded by this Agreement. Any order initiated as of the effective date of this Agreement, regardless of such order’s effective date, and notwithstanding anything to the contrary contained therein, shall be subject to this Agreement. In no event shall any terms or conditions included by Customer on any form or purchase order apply to the relationship between Company and Customer hereunder unless such terms are expressly agreed to by both parties in writing. Any amendments or waivers relating to this Agreement or any order must be in writing signed by the party, or parties, to be charged therewith.
13.2.
Independent Contractors. Customer is an independent contractor, and while Company may refer to our customers as partners in the business sense, no legal partnership, agency or joint venture is created by this Agreement, and Customer will not represent itself as an agent or affiliate of Company or attempt to contractually bind Company. CUSTOMER IS AN INDEPENDENT CONTRACTOR AND AS SUCH IS NOT ENTITLED TO WORKER'S COMPENSATION BENEFITS. CUSTOMER IS OBLIGATED TO PAY FEDERAL AND STATE INCOME TAX ON ANY MONIES EARNED PURSUANT TO THIS AGREEMENT.
13.3.
Affiliates. This Agreement will inure to the benefit of
the parties, as well as their Affiliates, subsidiaries, and respective
successors and assigns. All obligations
of “Customer” shall include its Affiliates, and each of their directors,
officers, employees, contractors, and agents, to the extent such entities are
using the software, products or support provided hereunder, and Customer is
fully responsible for all such entities’ compliance with all terms and
conditions contained within this Agreement as applicable to such person’s
activities and uses. Except in the case of Company’s
Affiliates, this Agreement is not intended to, nor may be deemed to create any
rights of enforcement in any person who is not a signatory to this Agreement. “Affiliate” shall mean an entity that directly, or
indirectly through one or more intermediaries, owns or controls, is owned or is
controlled by, or is under common ownership or control with a Company or
Customer, as applicable.
13.4.
Assignment. This Agreement binds and inures to the benefit
of the parties and their successors and permitted assigns, except that Customer
may not assign this Agreement without the prior written consent of Company. Company may assign the Agreement to an
Affiliate or in connection with a merger or consolidation involving Company (so
long as the assignment is to the newly merged or consolidated entity) or the
sale of Company’s assets in part or in whole (so long as the assignment is to
the acquirer of such assets).
13.5.
Severability. If
any provision of this Agreement is determined by a court of competent
jurisdiction to be illegal or unenforceable, the provision will be reformed and
construed to be a valid, operative and enforceable
provision while preserving its original intent. All of
the terms in this Agreement are severable, and the invalidity of any part of
this document does not render invalid the remainder.
13.6.
Force Majeure. Company shall not be held liable for the
failure to perform any obligation, or for the delay in performing any
obligation, arising out of or connected with this Agreement if such failure or
delay results from or is contributed to by any cause beyond its reasonable
control including failures or delays caused by the act or omission of any
governmental authority, fire, flood, failures of third-party suppliers, acts or
omissions of carriers, transmitters, providers of telecommunications or
Internet services, vandals, hackers or other event beyond its reasonable
control.
13.7.
No Construction against Drafter. Each of the parties hereto acknowledges that
it has had the opportunity to be represented by independent counsel of its
choice prior to entering into this Agreement.
In construing this Agreement, no provision hereof shall be construed in
favor of one party on the ground that such provision was drafted by the other.
13.8.
Counterparts.
This Agreement may be executed electronically
(including by means of facsimile or click-through) and in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
13.9.
Notices. Notices to Customer will be in writing and
delivered to the most recent mailing address provided to Company by Customer.
If an urgent matter arises, Company retains the right to use the primary email
address provided by Customer. All notices to Company must be in writing and
delivered to uTax Software, LLC, Attn: Edgar Rivas, 11985 Pellicano Dr, Ste
G-123, El Paso, TX 79936. All notices should be sent by trackable means and
will be considered made on the date of delivery. Each party is responsible for
giving the other party notice of a change of mailing or email address.