Thank you for choosing to trust uTax and the products and services offered within the uTax Solutions Platform for the success of your business’s 2020 tax filing season. As part of your business’s relationship with uTax, 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 uTax in connection with its 2019 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 uTax has an account (the “Customer”).
- Tax Compliance Software
1.1. License. The primary software offered by uTax is the uTax branded 2019 tax compliance software (the “Tax Compliance Software”), but uTax may provide Customer with other software. All software that Customer may receive from uTax under this Agreement and pursuant to an order, including the Tax Compliance Software, is licensed on a non-exclusive and non-transferrable basis in a quantity and of the type as specified on the order statement issued by uTax. uTax charges a licensing fee in order to provide access to the software it distributes (the “License Fee”).
1.2. Electronic Filing Fees. Electronic filing fees are also charged to Customer in connection with all tax returns that are electronically filed through the Tax Compliance Software.
1.3. EULA. When installing the Tax Compliance 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 Tax Compliance Software in full compliance with the terms of the applicable EULA, as further qualified by the terms of this Agreement and the uTax order statement.
1.4. Disclaimer. Customer acknowledges that uTax is a value-added reseller of the professional Tax Compliance Software, and as such, uTax itself makes no representations or warranties about the Tax Compliance Software and uTax waives and disclaims all liability as to the performance of the Tax Compliance Software. In order to fully support its business needs, it may be necessary for Customer to separately purchase additional third-party applications that it chooses to use in connection with the Tax Compliance Software.
2.1. Overview. One of the benefits of being a uTax customer is the highly regarded technical support that we provide to our customers through the use of trained uTax personnel from our US offices during regular and seasonal working hours. While uTax 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. uTax may provide system requirement information upon request, but Customer is solely responsible for preparing its computer systems for the 2019 Tax Compliance Software. uTax will not provide technical support for systems that do not satisfy the published minimum requirements. uTax 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 uTax support privileges. uTax does not provide support for any software, hardware or services that are not purchased directly through uTax.
- Refund Products:
3.1. Refund Product Providers. uTax 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. For the 2019 tax year, uTax will select authorized providers of Refund Product and currently intends to work with Refund Advantage, Republic Bank & Trust Company and Santa Barbara Tax Products Group (the “Refund Product Providers”), but the available Refund Product Providers are subject to change at any time in uTax’s sole discretion. In the event that uTax adds or removes a Refund Product Provider, uTax will notify our entire customer base of the change via email or other mass notice and provide our customers with enrollment instructions in the event that 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 January 5, 2020. Each Refund Product Provider will have applicable policies and procedures that Customer is required to follow.
3.2. Refund Product Fees. Customer acknowledges that certain fees will be charged to the taxpayer for the Refund Product products that Customer sells. Customer may also set its own fees during Customer’s enrollment with its selected Refund Product Provider. Any fees set by Customer will be sent by the Refund Product Provider to uTax, and uTax will first apply any fees received toward Customer’s electronic filing fees and/or the license fee for next year’s tax compliance software. Any balance after all obligations to uTax have been satisfied will be paid to Customer by June 30, 2020. Customer may request payment of its balance prior to June 30, 2020, but in such cases, uTax 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 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. uTax does not provide legal advice concerning Refund Product products or marketing.
- Websites and Mobile Apps.
4.1. Introduction. Customer has the option to work with uTax’s affiliate, METIK Marketing LLC (“METIK”) for the creation of a custom web site and/or a mobile application (collectively the “METIK Applications”). METIK Applications are provided at an additional charge. METIK Applications are licensed as an annually renewable subscription with reduced maintenance fees after the first year. Customer agrees that an annual fee for hosting and maintenance will apply for the METIK Applications.
4.2. Ownership. Customer shall obtain no ownership in the METIK Applications, 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 the METIK Applications or any content supplied or created by METIK after the Term unless Customer has renewed with both uTax and METIK for an additional year. Customer must not modify, copy, duplicate, reproduce, license or sublicense content, or transfer or convey the source code of any METIK Applications to anyone without the prior written consent of METIK. Customer agrees that such actions are 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 the US Copyright Act.
4.3. Customer Information. As between uTax 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 uTax 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. Project Completion. Custom projects will require Customer to work cooperatively together 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 order statement or otherwise.
4.8. 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.
4.9. 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.
4.10. Term. Customer agrees that all METIK Applications are provided only during such time that Customer is under agreement with uTax in connection with the tax compliance software offered by uTax. If this Agreement or use of the Tax Compliance Software expires or otherwise terminates and is not renewed before November 15, 2020, uTax 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.
4.11. 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. 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.
4.12. 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 or security of the METIK Applications outside of the United States.
4.13. Other Terms. METIK Marketing, LLC, is a sister company of uTax, and as such, the terms of this Agreement and the benefits, disclaimers, obligations, and rights of the party referred to as “uTax” under this Agreement, shall apply to METIK severally, and not jointly, for any services or actions that are specifically performed by METIK.
- Third Party Products.
5.1. Protection Plus and iProtect. uTax 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”) and iProtect identity theft products from iProtect, LLC (“iProtect”). uTax 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 uTax harmless for any damages, losses or harm arising out of the sale and purchase of these products and services, but 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. Fees. In the event a fee for a third party product is collected directly by the Customer, Customer authorizes uTax to collect the fee on behalf of the applicable Third Party Service Provider by using any existing credits Customer may have on account with uTax. Except as expressly stated in this Agreement, uTax does not provide any rebates or other payments for or on behalf of a Third Party Service Provider.
6.1. uTax. uTax represents that:
6.1.1. it has all legal rights and authority to enter into this Agreement, and by entering into this Agreement uTax 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 uTax will provide 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. uTax 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 for the 2020 filing season, Customer represents, warrants and covenants that it will only use the Tax Compliance Software provided by uTax for any and all 2019 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 uTax in writing. Customer will not take any action to circumvent this exclusivity. In the event that uTax discovers Customer is using an unauthorized Refund Product Provider and/or tax compliance software not obtained through uTax, Customer agrees that uTax may charge, or otherwise obtain from, Customer a fee of $20 per tax return that was filed in connection with such unauthorized product. Customer agrees that this fee represents 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 uTax, a Refund Product Provider or a Third Party Service Provider, and shall keep all contact information current by updating uTax 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 uTax for a surreptitious purpose of obtaining information from or about uTax, 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 uTax in a manner or to an extent that exceeds Customer’s authorized use as specified in the 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 uTax, 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 Product products. Customer and Customer’s EFIN are currently in good standing with the IRS. Customer will not use any software, products or services provided by uTax 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, and Customer will immediately notify uTax 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 uTax or its successors. Customer also agrees not to employ any of uTax’s (or its successors) employee(s) during the Term or for a period of two (2) years after the termination of this Agreement.
7.1. Pricing and Payments. All products and services are sold by uTax at the then-current price established at the time of purchase. Customer will pay uTax in accordance with the sales order form. Unless the parties agree otherwise in a sales order form, uTax 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 January 15, 2020. All payments must be made with one of the following methods of payment:
- A valid credit card;
- A valid debit card;
- The Cash Saver Program provided by uTax (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 UTAX 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 UTAX 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, 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 or the maximum amount permitted by law. uTax shall also have the right to restrict Customer’s account from access to the electronic filing center in the event that any payment becomes overdue.
7.3. Electronic Filing Fees. Electronic filing fees, as specified in the sales order form and payable under this Agreement, will be invoiced on a biweekly basis for the months of February, March, and April and on a monthly basis for all other months.
7.4. Taxes. Customer will pay any applicable taxes relating to this Agreement, other than taxes based on uTax’s income and any franchise-related taxes.
7.5. 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 uTax. 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 order statement. The Cash Saver Program requires 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 product that Customer sells. Customer must enroll with an approved Refund Product Provider in order to participate in the Cash Saver Program. If the specified fees collected by uTax in connection with Customer’s Refund Product sales is insufficient to pay-off the outstanding account balance before March 15, 2020, then the remaining balance will become due immediately, and Customer agrees the balance may be collected by uTax on March 15, 2020, through use of the debit card, credit card or ACH draft authorization referenced in Section 7.3. uTax 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.
8.1. ALL SOFTWARE, PRODUCTS, SERVICES, AND SUPPORT ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS. UTAX DISCLAIMS ALL LIABILITY FOR ANY THIRD PARTY SERVICE PROVIDER PRODUCTS INCLUDING, BUT NOT LIMITED TO, THE TAX COMPLIANCE SOFTWARE, THE RT PRODUCTS, TAX PROTECTION PLUS, AND IPROTECT PRODUCTS. OTHER THAN AS EXPLICITLY STATED IN THIS AGREEMENT, UTAX DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, COMPLETENESS, CURRENTNESS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. UTAX 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. uTax is not responsible for any loss caused due to any data breach or hacking of its servers. Customer agrees to hold harmless uTax for any claims arising as a result 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 uTax, 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 software provided by uTax.
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 uTax.
8.5. Functionality. uTax or 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. uTax reserves the right to discontinue products or services that in uTax’s judgment are no longer economically feasible or have become technologically out of date.
- Protection of Proprietary Rights and Confidential Information
9.1. Proprietary Rights. All products, software, services, and support are proprietary to uTax 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 uTax’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 trade names, 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 uTax 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. uTax will not transfer, disclose, sell or otherwise distribute such information in the form supplied by Customer to any third party (other than Representatives) without Customer’s consent, unless uTax 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.
- 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, 2020 (the “Term”).
10.2. Cancellation and Refund Policy. Upon the written request of Customer received by uTax within 72 hours of the date of placing an order for Tax Compliance Software with uTax, uTax shall refund all license fees paid by Customer under the order, less an 18% order processing fee. CUSTOMER UNDERSTANDS AND AGREES THAT UTAX 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 THE DATE OF PLACING AN ORDER WITH UTAX. MOREOVER, THE ORDER STATEMENT ISSUED BY UTAX, 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 UTAX 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. Electronic 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. Customer acknowledges that the Tax Compliance Software will be delivered to Customer after the software developer finishes development sometime in Q4 of 2019. Deliveries are f.o.b. point of shipment. Customer agrees that orders of software, products and/or services through uTax are not contingent on, and Customer has not relied on, the delivery of any future functionality regardless of any communication about future plans. Unavailability of the Tax Compliance Software prior to January 2020 or alleged claims of future promise shall not be used as grounds to terminate this Agreement. Should Customer attempt to terminate this Agreement through any financial recovery methods offered by a financial institution, uTax reserves the right to charge Customer a $50 fee.
10.4.1. In the event of material breach of Sections 6.2.1 through 6.2.6, uTax may immediately terminate this Agreement or, in its sole discretion, uTax may suspend Customer’s use of any and all software, products and/or services and notify Customer. Customer shall be required to cure any such breach within three (3) business days. If Customer fails to regain compliance within such time, uTax may, in its sole discretion, terminate this Agreement for cause, in addition to any other rights or remedies uTax may have. In the event of material breach of any other part of this Agreement by Customer or uTax, 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, uTax 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 uTax must have this right in order to preserve the integrity of uTax’s reputation within the industry and fulfill any requirements to prevent and/or prohibit fraud. This section does not limit uTax’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 uTax, a change in the competitive, legislative, or regulatory environment makes a current offering of uTax no longer commercially feasible, profitable or practical, uTax reserves the right to terminate this Agreement.
10.4.4. Customer agrees to hold harmless uTax for any claim that may arise out of uTax’s termination of a Customer’s software, products and/or services as permitted under this Agreement.
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 uTax’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 uTax for such breach of the Agreement, Customer will be liable to uTax 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 1.4, 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.
- Limitation of Liability; Indemnification
11.1. UTAX 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. UTAX’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 PAID AND PAYABLE 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 uTax’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.
- Choice of Law; Disputes; Remedies
12.1. This Agreement is governed by and construed in accordance with the laws of the State of Delaware, without regard to choice of law provisions. All disputes arising out of or relating to this Agreement shall 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 uTax 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 uTax, 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 uTax, 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 uTax for breaches of Section 6.2.1 a sum equivalent to the fees that uTax 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. uTax may refuse to renew Customer’s account for the following tax season in the event that 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 uTax 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. In no event shall any terms or conditions included by Customer on any form or purchase order apply to the relationship between uTax and Customer hereunder, unless such terms are expressly agreed to by both parties in writing. Any amendments of 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 uTax considers our Customers to be like 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 uTax or attempt to contractually bind uTax. 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 parent companies, sister companies, and any respective subsidiaries, affiliates, directors, officers, employees, contractors, and agents, as well as the Customer Affiliates, to the extent such entities are using the software, products or support provided hereunder, and Customer is fully responsible for 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 METIK as specified herein, 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.
13.4. Assignment. This Agreement binds and inures to the benefit of the parties and their successors and permitted assigns, except that neither party may assign this Agreement without the prior written consent of the other party; however, uTax may assign the Agreement to any of its affiliated companies or in connection with a merger or consolidation involving uTax (so long as the assignment is to the newly merged or consolidated entity) or the sale of substantially all of uTax’s assets (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. uTax 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 uTax by Customer. If an urgent matter arises, uTax retains the right to use the primary email address provided by Customer. All notices to uTax 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.