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.
2.1. 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.
6.1. 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.
8.1. 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.
10.4.1. 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.
13.1. 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.