Terms and Conditions

These terms and conditions of service are by and between SurePrep, LLC, a Delaware limited liability company with an address at 17890 Skypark Circle, Suite 100, Irvine, CA  92614, and its affiliated entities, including SurePrep (India) Private Limited, an Indian limited company (individually and collectively referred to as “SurePrep”) and the client (“Client”) identified and with an address as set forth in the Order Form pursuant to which the Client has ordered services from SurePrep (“Order Form”).  The Order Form (along with any Schedules or Exhibits annexed thereto) together with these terms and conditions of service shall collectively be referred to herein as the “Agreement”.  The Agreement shall remain in full force and effect for all orders and subsequently executed order forms unless and until the Agreement is modified or amended by SurePrep upon the execution by the parties of a new order form.

1. DEFINITIONS – the terms set forth below shall have the following meanings in this Agreement:

1.1       Software. The software described in the Order Form, including but not limited to, SPbinder®, 1040SCAN Pro®, 1040SCAN Organize®, and TaxCaddy®. SurePrep provides Software that is locally installed (“Local Software”) and within an application service provider model from a centrally managed facility (“Hosted Application Software”). The Hosted Application Software resides on a server and will be remotely accessible by Client. The Client will be required to download a limited amount of code, including but not limited to a tax software import application and SPbinder® on its resident computer to fully interact with the Hosted Application Software.  The Hosted Application Software may be located at a data center operated by SurePrep or by a third party under agreement with SurePrep.

1.2       Order Form. The sales proposal document that was executed by Client and the terms and conditions of which are incorporated as if fully set forth herein.

1.3       Service. Any operations, consulting, training, access, hosting or development conducted by SurePrep for Client. Such services, as set forth in the Order Form and as may be subsequently added, are broadly defined and are conducted in accordance with SurePrep’s standard procedures; provided, however, that Client is responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access the Service, and for paying all third-party access charges (e.g., ISP and telecommunications) incurred while using the Service. SurePrep makes no guarantees as to the continuous availability of the Service or of any specific feature(s) of the Service. SurePrep will inform Client, either in writing, orally or by e-mail notices, of any significant changes to the Service or the terms and conditions of this Agreement that it may make from time to time.

1.4       Client Data.  All Client provided information and data relating to Client or Client’s clients. Client Data does not include TaxCaddy data relating to a Tax Year not Sponsored by Client.

1.5       Processing Year. The calendar year in which a tax return is originally due to the IRS. (e.g., the Processing Year for a 2010 tax return is the calendar year of 2011).

1.6       Tax Year. The year for which taxes are due and a tax return is being generated.

1.7       Payment Schedule. The initial deposit payable in installments against which the Service Fees (defined below) shall be applied against.

1.8       Service Fees.  The fees which shall become due and payable for Software or services rendered in connection with the processing of returns using SurePrep Outsource®, Outsource Business, and 1040SCANverify, service.

2. LICENSE

2.1       SurePrep hereby grants Client the limited, non-exclusive and non-transferable right and license (“License”) to use the Hosted Application Software (in object code form only) and the Service pursuant to the terms of this Agreement. All rights not expressly granted to Client are hereby reserved to SurePrep. Client agrees that the Hosted Application Software is valuable, confidential and copyrighted property belonging solely to SurePrep, and that Client has not purchased or been sold any interest in the Hosted Application Software other than the Client rights as expressly provided herein.

2.2       Client agrees that the Hosted Application Software and the Service will only be used by Client or its employees either (a) on Client’s computers or (b) on equipment maintained by SurePrep. Subject to the terms of this Agreement, Client shall have the right to use the Hosted Application Software and the Service for Client’s internal business purposes.

2.3       Client agrees not to directly or indirectly reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Hosted Application Software; modify, translate, or create derivative works based on the Hosted Application Software; or rent, lease, distribute, sell, resell, assign, or otherwise transfer rights to the Hosted Application Software; or remove any proprietary notices or labels on the Hosted Application Software. Because the Hosted Application Software is proprietary, Client agrees not to publish or disclose to third parties any evaluation of the Hosted Application Software without SurePrep’s prior written consent. Client acknowledges that SurePrep retains exclusive ownership throughout the world of all the Hosted Application Software, any portions or copies thereof, and all rights therein. Upon termination of this Agreement for any reason, this License will terminate, and Client and any user accessing the Hosted Application Software or the Service by any means, will cease to use or have access to the Hosted Application Software and the Service.

3. TERM AND TERMINATION

3.1       The effective date of the Agreement is the “Effective Date” set forth in the Order Form or, if not included, the date the Order Form is signed by both parties. The term (“Term”) of the Agreement shall commence as of the Effective Date and terminate on the Termination Date as shown on page 1 of the Order Form. The term shall be automatically renewed for successive one-year terms thereafter until the Termination Date. The first year of the Agreement (“Initial Term”) and any renewal terms are collectively referred to as the “Term.”

3.2       The Service, including the license grant, may be terminated by SurePrep immediately upon notice to Client if Client materially breaches the Agreement or fails to comply with any of its terms or conditions or if any charges to Client remain unpaid for a period of fourteen (14) days from the due date.

3.3       Termination of the Agreement for any reason shall not affect either Client’s obligation to pay any sums due hereunder or any additional remedies available to SurePrep in law or equity.

3.4       Upon termination of the Agreement, any pre-payments or deposits held by SurePrep shall be applied to any fees or amounts due. In the event Client pre-pays any fees and receives a discount and Client fails to make orders as required to receive such discount, Client will be charged the non-discounted fee for such orders. Pre-payments or deposits will not be refunded to Client.

3.5       Upon termination of the Agreement, Client shall be blocked from all further use of the Service and Hosted Application Software.

3.6       Client owns all right, title and interest in Client Data during the Term and upon termination for any reason. It is the Client’s responsibility to make and retain copies of the Client Data prior to the termination of its access to the Hosted Application Software. Client may request, in writing, that SurePrep deliver a copy of Client Data residing in SurePrep’s server, within sixty (60) days of termination of the Agreement (“Courtesy Period”).  Client shall be responsible for paying reasonable fees associated with formatting and storing the Client Data into a deliverable media as well as SurePrep’s delivery costs.  Following the Courtesy Period, SurePrep shall destroy all Client Data.

4. CHARGES AND PAYMENTS

4.1       Client shall pay SurePrep the applicable fees set forth in the Order Form or invoiced to Client for the Software, services and features of the Software or service requested by Client, in accordance with the terms set forth in this Agreement.  Unless otherwise stated in the Order Form, all fees and charges specified for the Service indicated shall be due and payable immediately with delivery of the Order Form.  Unless otherwise agreed in writing, all additional Service Fees owed as set forth above shall be due and payable immediately upon receipt of the invoice for such additional Service Fees owed hereunder. Client shall pay a late payment fee (“Late Payment Fee”) computed at a rate of the lesser of 1½ percent per month, or the maximum permitted by applicable law, on any unpaid amount for each calendar month or fraction thereof that payment is overdue.  SurePrep will send to Client quarterly invoices related to sales and use taxes, or other similar levies, imposed by any state or local government authority in any of the States where the Agreement is performed.  If Client opts to pay SurePrep by Credit Card, a 2.75% convenience fee will be applied to the credit card payment amount made.

4.2       If Client disputes any portion of any invoice, Client must pay the undisputed portion of the statement in full by the due date and submit a written claim fully documenting the reasons the remaining amount is disputed. After receipt of such claim, SurePrep will undertake an investigation of the disputed charges. At the conclusion of the investigation, SurePrep will notify Client of any amount determined by SurePrep to be correctly charged and such amount will become immediately due and owing. Amounts determined by SurePrep to have been correctly charged will be subject to the Late Payment Fee. Unless such claim is submitted in this manner and received by SurePrep within ten (10) days of the date the invoice is issued, Client waives all rights to dispute such charges, unless otherwise provided by law.

4.3       If any installment payment or invoiced payments are delinquent by more than fourteen (14) days all discounts will be forfeited by Client and the amount due per the agreement will be recalculated based on the list price of Software and service fees purchased for the entire agreement. A new invoice will be generated by SurePrep in accordance with the list pricing and the invoice will be due in full upon receipt. Client’s access to the Service and Hosted Application Software may be suspended if Client’s account is delinquent. SurePrep may impose a charge to restore suspended accounts.

5. CLIENT WARRANTIES

5.1       Client represents and warrants to SurePrep that: (i) Client has full power and authority to enter into the Agreement and perform Client’s obligations hereunder and that the Agreement has been duly authorized, executed and delivered by Client and that it constitutes a valid and binding obligation of Client; (ii) that Client is using the Service and Hosted Application Software solely for its own use and only for uses explicitly authorized by the Agreement; (iii) that Client will comply with all applicable laws, rules, and regulations including those relating to professional ethics, conduct, and advertising; (iv) that Client has all necessary authority and licenses for all third party software that Client and/or its agents use with the Service; and (v) that Client has all necessary authority and licenses for SurePrep or its affiliates to use the Client selected third party software to provide the Service.  Client represents and warrants that the provision and use of any data, communication or other content provided by Client via the Service does not and will not violate any copyrights, trade secrets or other proprietary rights of any third party or create any liability to any third party.  Client further represents and warrants that the data, communications or other content to be provided by Client via the Service does not and will not contain any matter that is defamatory or which may cause injury or result in damage to a third party, and that the content does not and will not contain any matter that is false, deceptive, threatening, abusive, or obscene.  Client acknowledges that any breach of such representations and warranties is a material breach of the Agreement.  Client shall, upon written demand by SurePrep, defend, indemnify and hold harmless SurePrep and its officers, directors, employees, agents, and affiliates from and against any and all third party claims, actions, causes of action, liabilities, damages, costs, and expenses, including reasonable attorneys’ fees, arising out of or relating to any facts or alleged facts which, if true, would constitute a breach of such representations or warranties.

6. SUREPREP WARRANTIES

6.1       SurePrep represents and warrants that it has the right to grant the License to the Client, subject to the terms of this Agreement.  SurePrep hereby agrees to indemnify and hold Client harmless from any third party claim that any Hosted Application Software employed by SurePrep for Client’s benefit infringes any United States patent, and/or any copyright, trade secret or other property right held by such a third party, provided that SurePrep is notified promptly by Client of any such claim (including any threatened claim) and SurePrep shall have sole control of the defense with respect to same (including without limitation, the negotiations and settlement of such claim).

6.2       If such third party claim as described above has occurred or, in SurePrep s opinion, is likely to occur, Client agrees to permit SurePrep, at SurePrep’s option and expense, either to procure for Client the right to continue using the Hosted Application Software, to replace the Hosted Application Software, or to modify the same, so that it becomes non-infringing. If none of the foregoing alternatives is reasonably available, after using commercially reasonable efforts, Client agrees that SurePrep may terminate this Agreement. In such case, Client shall be entitled to a pro-rated refund of the fees paid hereunder.

6.3       THE FOREGOING CONSTITUTES THE ENTIRE LIABILITY OF SUREPREP AND THE SOLE REMEDY OF CLIENT WITH RESPECT TO ANY CLAIM OR ACTION BASED IN WHOLE OR IN PART UPON INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET OR OTHER PROPRIETARY RIGHT OF ANY THIRD PERSON.

7. ASSIGNMENT OF SERVICES

7.1       This Agreement is non-transferable and non-assignable by Client without the prior written agreement of SurePrep. Notwithstanding anything to the contrary contained in this Agreement, in the event that ownership of SurePrep is materially changed through merger, acquisition or other change in control, SurePrep may assign its rights and obligations under this Agreement to its successor without notice or the consent of Client.

8. CONFIDENTIAL INFORMATION

8.1       For purposes of this Agreement, “Confidential Information” shall mean all business and technical information and documentation of any kind and other similar data made available, directly or indirectly, by a party to this Agreement and its affiliates (the “Discloser”) to the other party to this Agreement and its affiliates (the “Recipient”), or received by a party to this Agreement during the Term including, without limitation, all Client Data. Confidential Information includes the Hosted Application Software and any other software, data, processes, documentation, and other information, that is regarded by the Discloser as confidential or proprietary and that: (i) is communicated to the Recipient in written or other tangible form, or (ii) is disclosed to the Recipient orally or by inspection, or (iii) any other information disclosed or obtained that the Discloser treats as confidential and proprietary.

8.2       During the Term and thereafter, all Confidential Information disclosed to or obtained by a Recipient in the course or conduct of the Service shall be kept in confidence and shall not be divulged by the Recipient.

8.3       Client data may at times be viewed or accessed only for the purpose of resolving a problem, support issue, quality concern, suspected violation of SurePrep’s User Agreement, or as may be required by law.  Except for data submitted by Client to SurePrep for Outsource offshore and/or 1040SCANverify Offshore, personally identifiable data will not be disclosed to individuals located outside the United States.

8.4       Nothing contained in this Agreement will in any way restrict or impair a party’s right to use, disclose, or otherwise deal with any information which: (i) was in the Recipient’s possession, without obligation of confidentiality, prior to the Recipient’s first receipt of the corresponding information; (ii) is now or hereafter becomes, through no act or failure to act on the Recipient’s part, generally available to the public on a non-confidential basis; (iii) was heretofore or is hereafter made available on an unrestricted basis to the Recipient from a source other than the Discloser, which source legally and properly received and disclosed the Confidential Information; (iv) becomes available on an unrestricted basis to a third party knowingly from the Discloser; (v) is hereafter independently developed by or for the Recipient or an affiliate thereof by someone who had no access, directly or indirectly, to the Discloser’s Confidential Information; or (vi) is released for disclosure with the Discloser’s written consent.

9. INTELLECTUAL PROPERTY RIGHTS

9.1       Client’s right to use the Hosted Application Software and related documentation is limited as provided in this Agreement, and may not be assigned or otherwise transferred without the prior written consent of SurePrep. These restrictions shall survive the termination of this Agreement.

9.2       Client acknowledges that SurePrep has exclusive rights, title and interest in and to the Hosted Application Software and related documentation. All applicable rights to patents, copyrights, trademarks and trade secrets in the Hosted Application Software and related documentation and modifications thereto made at Client’s request are and shall remain in SurePrep. Client agrees that it will not at any time do or cause to be done any act or thing impairing or tending to impair any part of such rights, title and interest. Client agrees that its use of the Hosted Application Software and related documentation shall not create in Client’s favor any right, title or interest in the Hosted Application Software and related documentation except as expressly provided herein.

9.3       SurePrep remains free to provide similar services to other Clients provided it does not violate the terms hereof concerning Confidential Information of Client. While providing the Services, SurePrep may develop inventions, technologies, methods, techniques, trade secrets, knowhow and other intellectual property concerning, without limitation, the provision of remote computer services, information technology services, telecommunications, data networks and data center management (collectively, “IP”). Except as provided herein, ownership of all intellectual property rights and all other right, title, and interest in all IP shall automatically vest in and remain the exclusive property of SurePrep.

10. NON-DISCLOSURE

10.1     Client shall not disclose to any third party any terms of this Agreement, except where Client is required to make disclosure by decree, court order, law, or applicable regulation, or where Client reasonably deems such disclosure necessary to its auditors, accountants, bankers, attorneys, financial intermediary, or regulatory agencies.

10.2     Client may make, at Clients expense, such number of copies of documentation provided to it by SurePrep as may be necessary or required for Client’s use of the Hosted Application Software.

11. PROFESSIONAL RESPONSIBILITY AND RELATIONSHIP OF PARTIES

11.1     Use of the Service and/or the Hosted Application Software does not relieve Client of responsibility, including responsibility to any third party, for the preparation, content, accuracy, and review of any tax returns or any other professional obligations Client may owe to third parties.  Client acknowledges that it does not rely upon SurePrep for advice regarding the appropriate tax treatment of items reflected on returns processed using the Service or Software.

11.2     SurePrep is an independent contractor and is not an employee, agent, servant, partner or joint venturer of Client. Client shall determine the Service to be provided by SurePrep, but SurePrep shall have sole control over the means by which it provides the Service.  SurePrep shall pay all wages, salaries, and other amounts due its employees in connection with this Agreement and shall be responsible for all reports and obligations respecting them relating to social security, income tax withholding, unemployment compensation, workers compensation, and similar matters.

11.3     Client acknowledges that the identity of SurePrep’s employees and contractors including those of SurePrep’s subsidiary SurePrep (India) Private Limited (individually and collectively referred to herein as “SurePrep (U.S. and India)”) are kept confidential and are not generally available to the public and may be valuable by virtue of providing a competitive advantage.  Client further acknowledges that the value of the time and expense expended on training employees and contractors on proprietary research and development; designs, ideas, techniques, methods, and processes also provides SurePrep (U.S. and India) with an economic advantage such that the act of solicitation of SurePrep (U.S. and India)’s employees or contractors may constitute an attempt to misappropriate a trade secret.  Accordingly, except with SurePrep’s express written consent, Client hereby agrees and covenants that during the term of this Agreement and for a period of two (2) years thereafter (“Restricted Period”) it will not directly, or indirectly through a contractor or agent, whether for its own account or for the account of any other person, firm, corporation or other business organization interfere with SurePrep (U.S. and India)’s relationship with or endeavor to entice away from, solicit, or deal with any person, firm, corporation or other business organization who or which at any time during the term of this Agreement was an employee, contractor, consultant or agent or within the prior one (1) year period was a former employee, contractor, consultant or agent of SurePrep except with the express written consent of SurePrep, which shall not be unreasonably withheld, but in no event shall the employee, contractor, consultant or agent at issue have provided service to the Client, participated in the development of software ever used by either Party, or participated in the development of any software used to service Client. Client acknowledges that SurePrep will have no adequate remedy at law if Client violates the terms of this paragraph. In such event, SurePrep shall have the right, in addition to any other remedies it may have, to obtain in any court of competent jurisdiction injunctive relief to restrain any breach or threatened breach of or otherwise to specifically enforce the covenants contained in this paragraph only to the extent necessary to prevent the disclosure of SurePrep’s trade secret information. If during the Restricted Period, Client is in violation of any term in this Section, Client shall pay SurePrep Liquidated Damages in the amount of thirty percent (30%) of the employee’s annual salary or thirty-five thousand dollars ($35,000), whichever is greater, and SurePrep shall have the right at its sole discretion to either cancel all discounts or immediately terminate this Agreement.  The Parties further acknowledge and agree that these Liquidated Damages represent a genuine pre-estimate of the damages likely to be suffered by SurePrep and such Liquidated Damages will not be construed as a penalty.

11.4     Client agrees to designate a Lead Advocate that will be the primary contact with SurePrep and will be responsible for the successful onboarding and continuing use of all Hosted Application Software licensed by the Client from SurePrep. The Client further agrees that the Lead Advocate will be fully trained and knowledgeable on all Hosted Application Software.

12. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITIES

12.1     The Software is provided “AS IS” without warranty of any kind either express or implied, to the fullest extent permitted by law, including, but not limited to any implied warranties of merchantability or fitness for a particular purpose and non-infringement. The entire risk as to the quality and performance of the Hosted Application Software is with the Client.  SurePrep does not warrant that: (i) the functions contained in the Hosted Application Software or the provision of the Service will meet the requirements of Client or operate in combinations which may be selected for use by Client, (ii) operation of the Hosted Application Software, or provision of the Service will be uninterrupted or error-free; (iii) Hosted Application Software defects will be corrected; (iv) the equipment used with the Hosted Application Software or the Service will operate or function correctly; or (v) that the Hosted Application Software conforms to any performance specifications.

12.2     In no event shall SurePrep be liable to Client or any third party for: (i) loss of profits, indirect, incidental, special, consequential or other damages, even if SurePrep has been advised of the possibility of such damages; (ii) any claim against Client by any third party except as provided in Section 6 herein; (iii) any damages caused by Client’s failure to perform Client’s responsibilities under the Agreement; (iv) any damage caused by: (1) delay in delivery of the Hosted Application Software or the Service; (2) performance of the Hosted Application Software or the Service, including, without limitation, mistakes, errors, inaccuracies, failures, or Client’s inability to provide services to third parties through use of the Hosted Application Software or the Service; (3) Client’s failure to perform Client’s responsibilities; (4) SurePrep’s not providing improvements to the Hosted Application Software or the Service; or (v) labor, expenses or materials necessary to repair damage to the Hosted Application Software or the Service caused by: (1) accident; (2) negligence or abuse by Client; (3) acts of third person including, but not limited to, installation, repair, maintenance or corrective work related to the equipment used with the Hosted Application Software or the Service; (4) causes external to the Hosted Application Software or the Service, such as power fluctuation and failures, (5) acts of God; (6) acts or omissions of the other party; (7) fires, storms, strikes, floods, war, insurrection or riot; or (8) or any other cause beyond its reasonable control. EXCEPT AS PROVIDED IN THIS SECTION 12, SUREPREP’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR DAMAGES DUE TO PERFORMANCE OR NONPERFORMANCE OF THE HOSTED APPLICATION SOFTWARE OR THE SERVICE, OR ANY OTHER CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OR ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, SHALL BE LIMITED TO FIXING THE AFFECTED HOSTED APPLICATION SOFTWARE OR THE SERVICE ERROR, OR WHERE SUREPREP IS UNABLE OR UNWILLING TO FIX SUCH SOFTWARE OR SERVICE ERROR, SUREPREP’S LIABILITY FOR ALL CLAIMS ARISING OUT OF THE AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO THE LESSER OF THE FEES PAID BY CUSTOMER FOR THE SPECIFIC SERVICES INVOLVED DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE GIVING RISE TO SUCH LIABILITY OR $1,000,000.00 (ONE MILLION DOLLARS).

IN NO EVENT SHALL SUREPREP BE LIABLE FOR ANY LOSS OF DATA, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR INDIRECT DAMAGES ARISING FROM OR IN RELATION TO THE AGREEMENT OR THE USE OF THE SERVICE, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY.  THIS LIMITATION WILL APPLY EVEN IF SUCH PARTY HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.

13. GENERAL

13.1     No action arising out of any claimed breach of the Agreement or transactions under the Agreement may be brought by either party more than one year after the event which gives rise to the specific cause of action.

13.2     Client acknowledges that the Hosted Application Software and the Service and other proprietary information of SurePrep are unique and that, in the event of any breach of the Agreement by Client, SurePrep may not have an adequate remedy at law and shall be entitled to enforce its rights hereunder by an action for damages and/or specific performance and/or injunctive or other equitable relief without the necessity of proving actual damage or the requirement of posting a bond.

13.3     SurePrep shall not be liable for delays in any of its performance hereunder due to causes beyond its reasonable control.

13.4     Client will not use “SurePrep, LLC” “SurePrep” or any other trade or service marks in Client’s announcements, advertising or other materials unless authorized beforehand in writing by SurePrep.

The Agreement shall be governed by and construed in accordance with the law of the State of California applicable to contracts made and to be performed therein, and the parties hereto agree to submit to the jurisdiction of the Federal or State Courts of Orange County, California, which shall have exclusive jurisdiction with respect to any claim or dispute arising under and in connection with the Agreement. The parties expressly waive trial by jury.  The rights and obligations under the Agreement shall not be governed by the United Nations Convention on Contracts or the International Sale of Goods, the application of which is expressly excluded.  Notwithstanding anything else in the Agreement, SurePrep may seek equitable relief for any breach or threatened breach of Sections 8, 9, 10 or 11 in any court of competent jurisdiction.

13.5     All notice, demands, consents or requests given by a party hereto shall be in writing and sent by delivery via a third party overnight express mail service or by United States certified mail, return receipt requested, postage prepaid, addressed to the other party at the address of the Client or SurePrep at the address listed on the Order Form, in each case to the attention of the chief executive officer of the other party. Notice shall be conclusively deemed given three days after deposit thereof in the United States mail or one business day following mail by overnight express mail service.

13.6    If necessary, as determined in SurePrep’s sole discretion, due to circumstances beyond the control of SurePrep, including but not limited to a pandemic such as the COVID-19 coronavirus outbreak, Client authorizes SurePrep to have its employees and service providers perform the services to be delivered pursuant to this Agreement (the “Services”) via a work from home arrangement rather than in SurePrep’s service centers. SurePrep will shift the Services back to its service centers as soon as reasonably practicable. If the Services are performed via a work from home arrangement, the Services will continue to be provided in the same country as they would have been performed in the applicable service center (i.e. Services that were performed in a service center in the United States will continue to be performed in the United States and services that were performed offshore will continue to be performed offshore). SurePrep acknowledges that security is important to its clients and, except to the extent any such measures cannot be feasibly implemented under a work from home arrangement, will continue the same security measures currently in place in its service centers. To mitigate the inability to provide certain physical security measures in a work from home arrangement, SurePrep will require each of its employees and service providers who perform the Services via a work from home arrangement to execute an acknowledgement that such person is bound by the same confidentiality, privacy and nondisclosure obligations such person is bound by when working in SurePrep’s service centers. Also, all SurePrep employees and service providers have passed a thorough background check, which includes a 5-panel substance abuse test, 7-year federal criminal search, 7-year felony and misdemeanor search, national criminal locator, and social security number trace. SurePrep’s cyber/privacy liability insurance will cover liability related to Services provided via a work from home arrangement.

13.7     The various rights, options, elections, powers and remedies of a party or parties to the Agreement shall be construed as cumulative and no one of them exclusive of any others or of any other legal or equitable remedy which said party or parties might otherwise have in the event of breach or default in the terms hereof. The exercise of one right or remedy by a party or parties shall not in any way impair its rights to any other right or remedy until all obligations imposed on a party or parties have been fully performed.

13.8     No course of dealing or waiver by either party of any breach, provision or default by either party hereto shall be deemed a waiver of any other breach, provision or default.

13.9     In the event that any of the provisions, or portions thereof, of the Agreement are held to be unenforceable or invalid by any court of competent jurisdiction, the validity and enforceability of the remaining provisions or portions of the Agreement shall not be affected thereby and the parties hereby agree, if practicable to amend such provision, or portion thereof, to the extent necessary to permit enforcement thereof.

13.10     All information furnished to and all work processed or completed by SurePrep in connection with the Service shall be confidential and private and will not be disclosed by SurePrep to anyone except as may be lawfully authorized by Client or pursuant to legal process.

13.11     If SurePrep prevails in an action against Client for breach of the provisions of the Agreement, Client shall pay the reasonable attorneys’ fees, costs and expenses incurred by SurePrep.

13.12     Client acknowledges that Client has read and understands the Agreement, that it constitutes the entire and exclusive Agreement between the parties and that it supersedes all prior communications between the parties. ORAL OR WRITTEN STATEMENTS MADE BY SUREPREP’S SALES REPRESENTATIVES, IF ANY, DO NOT CONSTITUTE WARRANTIES, SHALL NOT BE RELIED ON BY CUSTOMER, AND ARE NOT PART OF THE AGREEMENT.

13.13   Each party represents and warrants that they are competent to enter into this Agreement and understands its terms.  Each party further represents and warrants that they are not under the influence of any alcohol, medication, or substance(s), and do not have any other medical or psychological disability, which could or would affect that party’s ability to comprehend the terms of this Agreement and the ramifications thereof.

13.14   Each party represents and warrants that they were represented by independent counsel of their choosing in relation to this Agreement or that they had the opportunity to consult with independent counsel but chose not to do so, and each party further represents and warrants that they are entering into this Agreement of their own free will, of their own accord and are not acting under duress or undue influence.

13.15   The parties hereby acknowledge and agree that this Agreement was jointly drafted among all parties and no one of the parties shall be considered the drafter.

13.16   This Agreement may be signed in counterparts.  Signatures by facsimile or electronic transmission shall be acceptable and binding.