This MASTER AGREEMENT (which includes the SurePrep Online Storefront (“Storefront”)
along with any Schedules and Exhibits annexed thereto, and, together with this MASTER AGREEMENT along with any
Schedules, Addenda, and Exhibits annexed hereto, referred to as the “Agreement”) is
made effective on earlier of (a) the date when you click an “I agree to the MASTER AGREEMENT” button or check
box presented with these terms or, (b) the date when you first use any of the Service Offerings
(“Effective Date”). You represent to us that you are lawfully able to enter into this
Agreement (e.g., you are over the age of 18). If you are entering into this Agreement for an entity, such as the
company you work for, you represent to us that you have legal authority to bind that entity. The Agreement is by
and between SurePrep, LLC, a Delaware limited liability company, with an address at 17890 Skypark Circle,
Irvine, California 92614, along with its affiliated entities, including SurePrep (India) Private Limited, an
Indian limited company (collectively, “SurePrep”), and you as an individual or the
firm on whose behalf you are entering into this Agreement (“Client”) (depending on
whose name is provided as the “client” in the Storefront Order Form). Client may at any time during the
Agreement request additional Services via the Storefront or an Order Form which shall be incorporated in this
Agreement automatically as of the date of its execution by both parties.
- DEFINITIONS. The terms set forth below shall have the following meanings.
- De-Identified Data means Client Data that is not identifiable to a
specific individual, company, or to Client, such as by having been: (i) anonymized or pseudonymized;
(ii) aggregated with the data of other clients, taxpayers or additional data sources; and/or (iii)
presented in a way which does not reveal Client’s or taxpayers’ identity. Aggregated Data includes
raw data that is input to SurePrep processes so long as such raw data remains anonymized and not
identifiable to any person or entity.
- Blind Data shall have the meaning set forth in Section 3.3.
- Calendar Year means January 1 through December 31.
- Client Data means 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.
- Confidential Information means 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 or its affiliates (“Discloser”) to the other party or its affiliates
(“Recipient”), 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 Discloser as confidential or proprietary and that: (i) is
communicated to Recipient in written or other tangible form, or (ii) is disclosed to Recipient
orally or by inspection, or (iii) any other information disclosed or obtained that Discloser treats
as confidential and proprietary. SurePrep Confidential Information includes, but is not limited to,
all security and privacy-related documents (e.g., SOC reports, assessments, etc.) provided to or
obtained by Client relating to SurePrep or its service providers or contractors.
- Documentation means the written guides, manuals and technical documents
provided by SurePrep to Client describing the features, performance, use, operation, training, or
support of the Software.
- Intellectual Property shall have the meaning set forth in Section 1.
- Lead Champion shall have the meaning set forth in Section 4.
- License shall have the meaning set forth in Section 2.1.
- Order Form means an Order Form (either attached hereto or later entered
into during this Agreement) executed by the parties pursuant to this Agreement, each having an
effective date as of the “Start Date” stated thereon.
- Payment Schedule means the initial deposit payable in installments against
which the Service Fees shall be applied.
- Personally Identifiable Information means Client Data containing data
which identifies a specific identifiable individual.
- Processing Year means the calendar year in which a tax return is
originally due to the IRS. For example, the Processing Year for a 2020 Tax Year return is Processing
Year 2021 (since 2020 Tax Year returns are due during Calendar Year 2021).
- Restricted Period shall have the meaning set forth in Section 3.
- Services means the services provided by SurePrep pursuant to this
Agreement, including, any operations, consulting, training, hosted software access, or development
services conducted by SurePrep for Client.
- Service Fees means 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, Outsource 990 and 1040SCANverify.
- Software means the software described in the Order Form to which Client
purchases access or a license (as applicable), which may comprise software that is locally installed
(“Local Software”) and software that is hosted by SurePrep or its service
providers (“Hosted Application Software”). Software may include the
following (as set forth in the Order Form), which may be used concurrently or separately (as
- “SPbinder®” - a locally installed web interactive application that
enables Client to manage source document images through use of proprietary hosted
application software resident on SurePrep’s (or its affiliate’s or service provider’s)
server and remotely accessible by Client;
- “1040SCAN PRO®” - a web-based software tool that utilizes optical
character recognition (“OCR”) technology to organize source
documents, bookmark source document images, read the tax data from source documents and
import the data into tax software through use of proprietary hosted application software
resident on SurePrep’s server and remotely accessible by Client through a locally installed
- “1040SCAN ORGANIZE®” - a web-based software tool that utilizes OCR
technology to organize source documents and bookmark source document images through use of
proprietary hosted application software resident on SurePrep’s (or its affiliate’s or
service provider’s) server and remotely accessible by Client through a locally installed
- “Outsource offshore®” which includes the services of (i) the
offshore (i.e., outside the United States of America) preparation of personal tax returns,
(ii) making tax returns available via SurePrep’s electronic network, (iii) document
management, organization and distribution, and (iv) storage of Client Data;
- “Outsource onshore®” which includes the services of (i) the
onshore (i.e., within the United States of America) preparation of personal tax returns,
(ii) making tax returns available via SurePrep’s electronic network, (iii) document
management, organization and distribution, and (iv) storage of Client Data;
- “1040SCANverify onshore®” - a service performed by onshore
SurePrep personnel (employees and/or contractors) which includes review and completion of
the organization and data capturing of standard documents (a list of standard documents is
available at sureprep.com and may change without
notice) for returns that are submitted through 1040SCAN® or SPbinder® applications;
- “1040SCANverify offshore®” - a service performed by offshore
SurePrep personnel (employees and/or contractors)which includes review and completion of the
organization and data capturing of standard documents for returns that are submitted through
1040SCAN® or SPbinder® applications, and
- “TaxCaddy®” a web-based software tool which enables taxpayers to
gather tax data through a variety of methods and sources and securely access and share it
with their tax preparer.
- Sponsored Tax Year means each prior Tax Year for which Client pays the
TaxCaddy Storage Fee.
- Tax Year means the calendar year the tax return covers. For example, the
Tax Year for an Individual tax return that covers Calendar Year 2020 is Tax Year 2020.
- Term shall have the meaning set forth in Section 1.
- Unit means a tax return for Client.
- LICENSE; RIGHT TO ACCESS
- Grant of License. Subject to Client’s continued compliance with the terms of
this Agreement, SurePrep hereby grants to Client during the Term a limited, non-exclusive,
non-transferable (a) right to access and use the Hosted Application Software and receive the Service
and (b) license to install and use the Local Software in object code form only , both (a) and (b)
for Client’s internal business purposes only (all of the foregoing in this sentence collectively
referred to as the “License”). Client acknowledges and agrees that the
Local Software is being licensed, not sold, to Client by SurePrep. Client further acknowledges and
agrees that it shall not acquire any ownership interest in the Software under this Agreement. Client
shall promptly notify SurePrep if Client becomes aware of any possible third-party infringement of
SurePrep’s intellectual property rights arising out of or relating to the Software and fully
cooperate with SurePrep in any legal action taken by SurePrep against third parties to enforce its
intellectual property rights.
- Use Restrictions. Client agrees not to, directly or indirectly, (a) reverse
engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying
ideas or algorithms of the Software; (b) modify, translate, or create derivative works based on the
Hosted Application Software; (c) rent, lease, distribute, sell, resell, assign, or otherwise
transfer rights to the Software; (d) remove any proprietary notices or labels on the Software; (e)
use the Software for purposes of competitive analysis of the Software, the development of a
competing software product or service or any other purpose that is to SurePrep’s commercial
disadvantage; (f) install or use the Software on any computers or systems other than those owned or
controlled by Client; or (g) use the Software in any other manner or for any other purpose or
application not expressly permitted by this Agreement. Client agrees not to publish or disclose to
third parties any evaluation of the Software without SurePrep’s prior written consent. The foregoing
obligations in this paragraph shall survive any expiration or termination of this Agreement.
- Hosted Application Software. The Hosted Application Software resides on a
server remotely accessible by Client. Client will be required to download a limited amount of code
(as part of the Local Software), including, but not limited to, a tax software import application
and SPbinder® to fully interact with the Hosted Application Software. The Hosted Application
Software may be located at a data center operated by SurePrep or its affiliates, or by a third party
under agreement with SurePrep.
- The Services. The Services are conducted in accordance with SurePrep’s
standard procedures and the Support Level Policy set forth in Exhibit C ; provided, that Client is
responsible for obtaining and maintaining all computer hardware, software and communications
equipment needed to access the Services, and for paying all third-party access charges (e.g., ISP
and telecommunications) incurred while using the Services. SurePrep makes no guarantees as to the
continuous availability of the Services or of any specific feature(s) of the Services. SurePrep will
inform Client, either in writing, orally or by e-mail notices, of any significant changes to the
Services that it may make from time to time.
- Right to Provide Similar Services. SurePrep remains free to provide the
Services (and any other services it chooses) to other clients.
- Right to Access and Use the SurePrep Academy. Subject to Client’s continued
compliance with the terms of this Agreement, SurePrep hereby grants to Client during the Term a
limited, non-exclusive, non-transferable (a) right to access and use the SurePrep Academy™ online
learning management system pursuant to the SurePrep Academy Terms of Service set forth in Exhibit A
attached hereto and incorporated herein.
- USE OF DATA
- Client Data. Client owns all right, title and interest in Client Data.
Client is responsible for making and retaining copies of 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 on SurePrep’s server within sixty (60) days of termination of this
Agreement (the “Courtesy Period”). Client shall pay SurePrep reasonable
fees to format and store Client Data in a deliverable media as well as SurePrep’s delivery costs.
Following the Courtesy Period, SurePrep shall promptly destroy all Client Data. Client hereby grants
to SurePrep (and its service providers who are under written obligations of confidentiality
commensurate in scope and duration with those in this Agreement) a nonexclusive, royalty-free right
and license to use Client Data during this Agreement, and during any period after expiration or
termination which expressly provided in this Agreement, solely for SurePrep’s performance under this
Agreement and for its internal research and business improvement purposes.
- Use of Credentials and Authority to Access Information.
- Client hereby grants SurePrep the right and license to use and disclose to SurePrep’s
service providers Client’s (and it users’ and taxpayers’) login credentials and personal
information (as provided by Client or its users or taxpayers) to banks and brokerage firms
for the purpose of enabling SurePrep and such service providers to retrieve documents and
data from such banks and brokerage firms and transmit such documents and data to SurePrep,
and to otherwise provide the Services.
- Authority to Access Information. Unless and until this agreement is
terminated, Client hereby grants SurePrep and its service providers the right to access
information at third-party sites on Client’s and its users’ and taxpayers’ behalf.
Third-party sites shall be entitled to rely on the authorizations granted by Client or its
users and taxpayers or through Client’s account. For all purposes hereof, Client hereby
grants SurePrep and its service providers the right to access third-party sites to retrieve
information, use such information, as described herein, with the full power and authority to
do and perform each and every act and thing required and necessary to be done in connection
with such activities, as fully to all intents and purposes as Client might or could do
itself. Upon notice to SurePrep, Client may (i) revoke SurePrep’s right to access
information at third-party sites on Client’s behalf, or (ii) subject to Section 3.3,
request deletion of information collected from third-party sites. Client understands and
agree that the Services are not sponsored or endorsed by any third-party site. CLIENT
ACKNOWLEDGES AND AGREES THAT WHEN SUREPREP OR ITS SERVICE PROVIDERS ACCESS AND RETRIEVE
INFORMATION FROM THIRD-PARTY SITES, EACH IS ACTING AT CLIENT’S REQUEST AND WITH CLIENT’S
PERMISSION AND AUTHORIZATION, AND NOT ON BEHALF OF THE THIRD-PARTY SITES.
- Blind Data. SurePrep may collect, develop, create, extract, compile,
synthesize, analyze and commercialize statistics, analytics, metrics, reports, benchmarks, measures
and other information derived or generated from or based on Client Data, but not containing
Personally Identifiable Information (collectively, “Blind Data”). Blind
Data and any trained models, products or services derived from Blind Data will be owned solely by
SurePrep and may be used for any legitimate business purpose of SurePrep or its affiliates without a
duty of accounting to Client, such purposes including, but not limited to, (a) to create, test, and
inform algorithms, machine learning and product automation; and (b) to create and test machine
learning models for tax preparation and verification automation and quality detection.
- INTELLECTUAL PROPERTY
- Intellectual Property Ownership. Client acknowledges that the Software and
Services contain proprietary information (including, but not limited to, the provision of remote
computer services, information technology services, telecommunications, data networks and data
center management) of SurePrep and are protected by copyright, trademark, patent, trade secret
and/or other intellectual property rights (“Intellectual
Property”); and that all such intellectual property rights are
and shall be owned by SurePrep. Client agrees not to challenge any Intellectual Property right of
SurePrep in the Software or the Service during this Agreement or at any time after any expiration or
termination thereof. All of Client’s obligations regarding the limitations on use and the
intellectual property rights of SurePrep, shall survive any termination or expiration of this
- Improvements; Feedback. All customizations, improvements, modifications,
adaptations, derivative works, or enhancements to the Software or Services created during this
Agreement (collectively, “Improvements”) shall be owned exclusively by
SurePrep. Client may provide suggestions, comments, ideas, or other feedback including, but not
limited to, new features, feature ideas, or functionality, or any questions, comments, suggestions,
ideas, original or creative materials, or other information relating to the Software or Services
(collectively, “Feedback”). Client agrees to and does hereby assign to
SurePrep automatically on creation or disclosure to SurePrep all right, title, and interest in all
Feedback and Improvements, without any need for further consideration or notice to Client.
- Trademarks. Client will not use and of SurePrep’s brands in Client’s
announcements, advertising or other materials unless approved in advance in writing by SurePrep.
SurePrep may use Client’s name and brands to identify Client as a client of SurePrep.
- Rights Reserved. All rights not expressly granted herein are reserved by SurePrep.
- TERM AND TERMINATION
- Term. This Agreement shall commence on the Effective Date and continue for
as long as there is an active Order Form (“Term”) or until terminated as
- Termination for Cause. Either party may terminate this Agreement for
cause if the other party commits a material breach of this Agreement (other than a failure
of Client to timely pay any fees owed) that remains uncured forty five (45) days after
written notice of such breach is delivered to the other party. Notwithstanding anything to
the contrary in this Agreement, any willful unauthorized access, use, copying, disclosure,
distribution, or sublicensing of intellectual property or any related methods, algorithms,
techniques, or processes of SurePrep by Client will be deemed a material breach of this
Agreement that cannot be cured and will entitle SurePrep to immediately terminate this
- Termination without Cause. Client may terminate this Agreement
without cause by providing thirty (30) days’ prior written notice to SurePrep, provided that
Client shall pay SurePrep within thirty (30) days of such termination the fees owed under
the then-applicable Order Form(s) for the remainder of the then-current Term.
- Suspension/Termination Based on Threat of Infringement. In the event
that either SurePrep or Client is threatened in writing or is sued for infringement or
violation of any third party intellectual property right relating to the performance of the
Services, then the party receiving the threat or lawsuit shall notify the other party within
five (5) days of receipt. In such an event SurePrep may, at its option and by providing
written notice to Client, either (a) suspend performance of the Services until the threat is
removed to the reasonable satisfaction of SurePrep or the lawsuit dismissed or, (b) if the
threat is not resolved or the lawsuit dismissed within three (3) months of SurePrep
receiving notice thereof, SurePrep may terminate this Agreement by providing notice in
writing to Client. In such an event, SurePrep shall be paid for all completed Services and
for all in-process Services provided up to the date of termination on a pro rata basis.
Further, in such an event Client shall immediately discontinue use of any Service of
Software that is the subject of the threat or lawsuit until such threat is removed or the
lawsuit is dismissed. If Client does not immediately discontinue such use or
commercialization, SurePrep shall have no obligation to indemnify, defend or hold Client
harmless for such continued use or commercialization, and further, Client shall indemnify,
defend and hold SurePrep pursuant to Client’s obligations in Section 14 (Indemnification).
- Effect of Termination. Upon expiration or termination of this Agreement, the
License will automatically terminate and Client and any user accessing or using the Software or the
Service on behalf of Client by any means, will immediately cease to use or have access to the Hosted
Application Software and the Service, and will immediately uninstall and delete any Local Software.
Termination of this Agreement shall not affect either Client’s obligation to pay any sums due
hereunder or any additional remedies available to SurePrep in law or equity. Upon termination of
this Agreement, any pre-payments or deposits held by SurePrep shall be applied to any fees or
amounts due. In the event Client prepays any fees and receives a discount and Client fails to make
timely orders as required to receive such discount, Client agrees to pay SurePrep within thirty (30)
days of such termination the non-discounted fee for such orders. Pre-payments or deposits will not
be refunded to Client. Upon termination of this Agreement, Client shall be blocked from all further
use of the Service and Hosted Application Software. Upon Client’s request within thirty (30) days of
termination and upon pre-payment of SurePrep’s then-current standard fee, SurePrep will provide
Client with a copy of Client’s Client Data. SurePrep has the right to delete Client Data after three
(3) months following the effective date of any termination.
- CHARGES AND PAYMENTS
- Charges. Client shall pay SurePrep the fees set forth in the applicable
Order Form or invoiced to Client for the Software and Service requested by Client in accordance with
the terms set forth in this Agreement. Unless otherwise stated in the applicable Order Form, all
fees and charges specified for the Services shall be due and payable immediately with delivery of
the applicable Order Form. Unless otherwise agreed in writing, all additional Service Fees owed as
set forth above shall be due and payable within thirty (30) days of receipt of the invoice for such
additional Service Fees owed hereunder. If full payment is not timely received, Client shall pay
interest equal to the lesser of 1½ percent (1.5%) per month, or the maximum rate 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 this
Agreement is performed. All amounts stated and to be paid under this Agreement shall be in U.S.
dollars. Fees may be paid by check, credit card, wire, or ACH. If Client elects to pay SurePrep by
credit card, a 2.75% convenience fee will be applied to the credit card payment amount made.
- Invoice Disputes. If Client disputes any portion of an invoice, Client must
notify SurePrep in writing of the dispute within fifteen (15) days of invoice receipt and pay the
undisputed portion of the invoice 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
investigate the disputed charges. At the conclusion of such 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 interest. Unless such claim is submitted in this manner and received by SurePrep within
thirty (30) days of the date the invoice is issued, Client waives all rights to dispute such
charges, unless otherwise provided by law.
- Delinquent Payments. If any payment is not received when due, all discounts
will be forfeited by Client and the amount due pursuant this Agreement will be recalculated based on
the List Price of Software and Service Fees purchased for the entire Term of the then-current Order
Form. A new or reissued invoice will be generated by SurePrep in accordance with the List Price, and
Client agrees to pay the invoice in full upon receipt. Client’s access to the Service and Software
may be suspended if Client’s account is delinquent. SurePrep may impose a charge to restore
- SUSPENSION OF SERVICES.
- SurePrep may suspend or restrict access to the Software or Services, in whole or in part, upon
notice to Client if: (a) Client fails to timely pay an undisputed invoice; (b) SurePrep reasonably
believes that Client has violated applicable law or regulation, or the continued access may cause
SurePrep to violate applicable law or regulation, which may have a potentially adverse effect on
SurePrep or its other clients; (c) SurePrep reasonably believes that it is necessary to protect the
servers, systems, infrastructure, data, or information of SurePrep or its respective third-party
providers or other clients, from a denial of service attack, security breach, introduction of a
virus or other malware, ransomware attack, or similar event; (c) requested or ordered by a law
enforcement agency, government agency, or similar authority; or, (e) Client fails to cooperate with
SurePrep to investigate suspected violations of this Agreement. Upon removal, cessation or
mitigation of the underlying cause for any of the above that occurs, SurePrep will resume providing
access to the affected Software and/or Services. During any period of suspension under this
Section 7, Client’s payment obligations shall not be suspended.
- CONFIDENTIAL INFORMATION
- Non-Disclosure. During the Term and after any expiration or termination of
this Agreement, all Confidential Information of Discloser disclosed to or obtained by Recipient in
connection with this Agreement shall be kept in confidence and shall not be divulged by Recipient.
- Client Data. Client Data may at times be viewed or accessed by SurePrep or
its affiliates only for the purpose of resolving a problem, support issue, quality concern,
suspected violation of SurePrep’s user agreement, or as may be otherwise permitted under this
Agreement or required by law. Except for data submitted by Client to SurePrep for Outsource offshore
and/or 1040SCANverify Offshore services, Personally Identifiable Information will not be disclosed
to third parties (i.e., non-affiliates) located outside of the United States.
- Excluded Information. Confidential Information excludes any information
which: (i) was in Recipient’s possession, without obligation of confidentiality, prior to
Recipient’s first receipt of the corresponding information; (ii) becomes, through no act or failure
to act on Recipient’s part, generally available to the public on a non-confidential basis; (iii) is
made available on an unrestricted basis to Recipient from a source other than 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 Discloser; (v) is hereafter
independently developed by or for Recipient or an affiliate thereof by someone who had no access,
directly or indirectly, to Discloser’s Confidential Information; or, (vi) is released for disclosure
with Discloser’s written consent.
- Terms of this Agreement. 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.
- Copies of Documentation. Subject to the terms of this Agreement, Client may
make and distribute internally, at Client’s expense, such number of copies of Documentation provided
to it by SurePrep as may be necessary for Client’s use of the Software.
- Injunctive Relief. Recipient acknowledges that the Confidential Information
is unique and that, in the event of any breach of this Agreement by Recipient, Discloser 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.
- PROFESSIONAL RESPONSIBILITY AND RELATIONSHIP OF PARTIES
- Professional Responsibility. Use of the Service and the 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.
- Independent Contractor. SurePrep is an independent contractor and is not an
employee, agent, servant, partner or joint venturer of Client. Client shall determine the services
to be provided by SurePrep, but SurePrep shall have sole control over the means by which it provides
such services. 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.
- Non-Solicitation. Client acknowledges that the identity of SurePrep’s
employees and contractors, including those of SurePrep’s subsidiary SurePrep (India) Private
Limited, 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 with an economic advantage
such that the act of solicitation of SurePrep’s employees or contractors may constitute an attempt
to misappropriate a trade secret. Accordingly, except with SurePrep’s prior express written consent,
Client agrees that during the Term of this Agreement and for a period of two (2) years after any
expiration or termination thereof (the “Restricted Period”) Client 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’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, but in no event shall the
employee, contractor, consultant or agent at issue have provided service to 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 Section 3. 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 Section 9.3. If during the Restricted Period Client is in
violation of any term in this Section 9.3, 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 acknowledge and agree that
such 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.
- Designation of Lead Champion. Client agrees to designate a “Lead
Champion” that will be the primary contact with SurePrep and will be
responsible for the successful implementation and continuing use of the Software. Client further
agrees that the Lead Champion will be fully trained and knowledgeable on all Software.
- During the Term for each Hosted Application Software item purchased, SurePrep will use commercially
reasonable efforts to (a) host, maintain and make Hosted Application Software available twenty four
hours each day, seven days each week in accordance with the Service Level Policy set forth in
Exhibit B attached hereto and incorporated herein, and (b) employ reasonable administrative,
technical, and physical safeguards consistent with industry standards designed to protect the
confidentiality, integrity, and availability of Client Data maintained on and processed by the
Hosted Application Software. Client acknowledges that SurePrep and/or its providers perform periodic
maintenance on the Hosted Application Software and servers related thereto that may result in
periods during which the Hosted Application Software is not accessible.
- SUREPREP’S REPRESENTATION AND WARRANTIES
- Right to Grant License. SurePrep represents and warrants that it has the
right to grant the License to Client, subject to the terms of this Agreement.
- Limited Warranty for Local Software. SurePrep warrants that, (i) the Local
Software will conform in all material aspects to the Documentation for a period of ninety (90) days
after delivery and (ii) the Local Software when delivered does not contain any time bomb, Trojan
horse, back door, worm, virus, malware, spyware, or other device or code designed or intended to, or
that could reasonably be expected to, (a) disrupt, disable, harm, or otherwise impair the normal and
authorized operation of, or provide unauthorized access to, any computer system, hardware, firmware,
network, or device on which the Local Software is installed, stored, or used; or, (b) damage,
destroy, or prevent the access to or use of any data or file without the user’s consent
(collectively, all in this sentence being the “Local Software Warranty”).
In the event that the Local Software does not conform to the Local Software Warranty, Client’s sole
and exclusive remedy will be for SurePrep to modify the Local Software to conform to the Local
- Limited Warranty for Hosted Application Software. SurePrep warrants that
SurePrep shall use commercially reasonable efforts to prevent the System, Client’s use thereof, and
any data or reports downloaded therefrom by Client from containing or introducing into Client’s
systems any time bomb, Trojan horse, back door, worm, virus, malware, spyware, ransomware, or other
device or code designed or intended to, or that could reasonably be expected to, (a) disrupt,
disable, harm, or otherwise impair the normal and authorized operation of, or provide unauthorized
access to, any computer system, hardware, network, or device; or (b) damage, destroy, or prevent the
unauthorized access to or use of any data or file of Client.
- Disclaimer of Warranties. OTHER THAN AS EXPRESSLY STATED HEREIN, THE
SOFTWARE, AND SERVICES PROVIDED BY SUREPREP ARE PROVIDED “AS IS” WITHOUT ANY STATUTORY OR IMPLIED
WARRANTY OF ANY KIND AND NO OTHER WARRANTIES, GUARANTEES, CONDITIONS OR REPRESENTATIONS, WHETHER
IMPLIED, STATUTORY OR OTHERWISE, ARE MADE. SUREPREP EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES,
INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
TITLE, NONINFRINGEMENT, AND UNINTERRUPTED, ERROR-FREE USE. SUREPREP DOES NOT WARRANT THAT THE
SOFTWARE OR THE SERVICE WILL MEET THE REQUIREMENTS OF CLIENT OR OPERATE IN COMBINATIONS WHICH MAY BE
SELECTED FOR USE BY CLIENT.
- CLIENT’S REPRESENTATIONS AND WARRANTIES
- Client represents and warrants to SurePrep that: (i) Client has full power and authority to enter into
this Agreement and perform Client’s obligations hereunder and that this Agreement has been duly
authorized, executed and delivered by Client and that it constitutes a valid and binding obligation of
Client; (ii) that Client will comply with all applicable laws, rules, and regulations including those
relating to professional ethics, conduct, and advertising; (iii) that Client has all necessary authority
and licenses for all third party software that Client and/or its contractors and service providers use
with the Service; and (iv) that Client has all necessary authority and licenses for SurePrep or its
affiliates to use Client selected third party software to provide the Service. Client represents and
warrants that all information Client and its taxpayers provide to SurePrep in connection with the
Services is accurate, current, and complete. Client agrees not to misrepresent the identity or account
information of Client or its users. Client agrees to keep account information secure, up to date and
accurate. Client represents that Client is a legal owner, or an authorized user, of the accounts at
third party sites which Client includes or access through the Services, and that Client has the
authority to (a) designate SurePrep and its service providers as Client’s agent for such purpose, (b)
use the Services, and (c) provide SurePrep and its service providers the login credentials and all other
information Client or it’s taxpayers provide. Client represents and warrants that the provision and use
of any data, communication or other content provided by Client via the Software or Service does not and
will not (x) violate any copyrights, trade secrets or other proprietary rights of any third party or
create any liability to any third party; (y) contain any matter that is defamatory or which may cause
injury or result in damage to a third party; and, (z) 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 this Agreement.
- LIMITATION OF LIABILITY
- IN NO EVENT SHALL SUREPREP OR ITS SERVICE PROVIDERS BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR: (i) LOST
PROFITS, (ii) INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, EVEN IF
SUREPREP OR ITS SERVICE PROVIDERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (iii) any damages
caused by Client’s failure to perform Client’s responsibilities under this Agreement; (iv) any damage
caused by: (B) Client’s inability to provide services to third parties through use of the Software or
the Service; or (v) labor, expenses or materials necessary to repair damage to the Software or the
Service caused by: (A) accident; (B) negligence or abuse by Client; (C) acts of third person including,
but not limited to, installation, repair, maintenance or corrective work related to the equipment used
with the Software or the Service. EXCEPT AS PROVIDED IN THIS SECTION 13, SUREPREP’S AGGREGATE LIABILITY
FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT
OR OTHERWISE, SHALL BE LIMITED TO THE LESSER OF (A) THE FEES PAID BY CLIENT UNDER THE ORDER FORM FOR THE
SPECIFIC SOFTWARE OR SERVICE INVOLVED IN THE OCCURRENCE GIVING RISE TO THE CLAIM FOR SUCH LIABILITY
DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE GIVING RISE TO THE CLAIM FOR
SUCH LIABILITY, OR (B) ONE MILLION DOLLARS ($1,000,000.00).
- Neither SurePrep nor its service providers shall be liable for, and Client hereby releases SurePrep of
all liability and obligation related to, any delays, inaccuracies or incomplete Service caused by the
failure of Client or Client’s third party service providers to properly or timely meet their obligations
- Indemnification by SurePrep. SurePrep shall indemnify and hold harmless Client
and its officers, directors, employees, service providers, agents, and affiliates from and against any
and all third-party claims, actions, or causes of action (“Claims”) for any
liabilities, damages, penalties, fines, assessments, costs, and expenses, including reasonable
attorneys’ fees and costs (collectively, “Losses”), (a) that the Software
infringes any United States patent, and/or any copyright, trade secret or other property right held by
such a third party; (b) 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). 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, SurePrep may terminate this Agreement. In such case, Client
shall be entitled to a pro-rated refund of the fees paid hereunder. THE REMEDIES SET FORTH IN THIS
SECTION 1 CONSTITUTE THE ENTIRE LIABILITY OF SUREPREP AND THE SOLE AND EXCLUSIVE REMEDY OF CLIENT WITH
RESPECT TO ANY CLAIM OR ACTION BASED IN WHOLE OR IN PART UPON INFRINGEMENT.
- Indemnification by Client. Client shall defend, indemnify, and hold harmless
SurePrep and its officers, directors, employees, service providers, agents, and affiliates from and
against any and all third-party Claims for any Losses arising out of or relating to any facts or alleged
facts which, if true, would constitute a breach of such representations or warranties.
- FORCE MAJEURE
- A “Force Majeure Event” means a cause or event beyond the reasonable control
of the party claiming delay of performance, including, but not limited to, (i) labor disputes, strikes,
or lockouts (but excluding nonunion labor shortage or disputes), or labor unavailability or workplace
closure or restrictions as required or recommended by government or agency due to pandemic, epidemic, or
other widespread health emergency (e.g., viruses or other diseases, such as, but not limited to,
COVID-19, SARS, etc.); (ii) riots, war, acts of terrorism, or other civil disturbance; (iii) fire,
flood, earthquake, tornado, hurricane, snow, ice, lightning, or other natural disasters, elements of
nature or acts of God, (iv) outages, cable cuts, power crisis shortages, infrastructure outages or
failures, internet failures, interruption or failure of telecommunications carriers or digital
transmission links, network congestion, computer equipment failures, telecommunication equipment or
other equipment failures, electrical power failures, loss of or fluctuations in heat, light, or air
conditioning, all of the foregoing in this Subsection (iv) being of or due to third party providers or
utility service providers; (v) acts of computer, system, or network sabotage or file lockup (e.g.,
ransomware attack), DDOS or other network attacks, intrusion, or other failures not arising out of a
breach of Provider’s data security obligations set forth in this Agreement; (vi) any law, order,
regulation, direction, action or request of the United States, state or local governmental agency,
department, commission, court, bureau, corporation or other instrumentality of any one or more of such
instrumentality, or of any civil or military authority, or national emergencies, including imposing an
embargo, export or import restriction, quota or other restriction or prohibition or any complete or
partial government shutdown; (vii) change in law or regulation making performance impracticable without
having material impact on such party’s ability to perform under this Agreement without material increase
in cost, resources, or time; or, (viii) national or regional shortage of adequate power or
telecommunications or transportation.
- With the exception of the payment of monies owed, if by reason of a Force Majeure Event, either party is
unable to perform in whole or in part its obligations as set forth in this Agreement, then such party
shall be relieved of those obligations to the extent it is so unable to perform and such inability to
perform shall not make such party liable to the other party. A party shall promptly notify the other
party in the event of a Force Majeure Event affecting the party’s ability to perform. Neither party
shall be liable for any loss, injury, delays or damages suffered or incurred by the other party due to
the above causes. In the event a Force Majeure Event occurs whereby the affected party is unable to
perform in whole or in part its obligations as set forth in this Agreement for a period of thirty (30)
consecutive days, the other party shall have the right to terminate this Agreement without termination
liability, other than for fees due up to the date of termination.
- DISPUTE RESOLUTION
- The parties will attempt in good faith to resolve any dispute. Each party will designate an officer or
senior level management executive with decision making authority (collectively, an
“Executive”) with the responsibility and the authority to resolve the dispute.
These Executives will meet or hold a telephone conference call within thirty (30) days after the request
to identify the scope of the dispute and the information needed to discuss and attempt to resolve such
dispute. These Executives will then gather relevant information regarding the dispute and will meet or
hold a telephone conference call promptly to discuss the issues and to negotiate in good faith to
resolve that issue. In the event the parties are unable to resolve the dispute within sixty (60) days
after the specific meeting of the designated Executives as specified above (or such longer time as the
parties agree), then the dispute shall be resolved by mandatory arbitration, which may be submitted by
either party. Such arbitration will be conducted at a location to be mutually agreed to by the parties,
or in the absence of such agreement, in Irvine, California in accordance with the commercial rules
(“Rules”) then in effect of the American Arbitration Association by one (1)
arbitrator appointed in accordance with such rules. The award rendered by the arbitrator will be final
and binding, and judgment may be entered upon it in any court having jurisdiction thereof. In the event
the arbitrator determines that either party fails to resolve any dispute in good faith, the arbitrator
may award (in any amount deemed appropriate by the arbitrator) the prevailing party its costs and
expenses of arbitration, including filing fees and attorneys, accountants, and experts fees. All aspects
of the arbitration shall be treated as confidential, as provided in the Rules. Before making any
disclosure permitted by the Rules, a Party shall give written notice to the other party and afford such
Party a reasonable opportunity to protect its interests. Each Party shall bear its own costs in the
arbitration; however, the Parties shall share the fees and expenses of the arbitrator equally.
- The arbitrator(s) will have no authority to award attorneys’ fees, punitive damages, or any other
monetary relief not measured by the prevailing party’s actual damages. The arbitrator(s) will not make
any ruling, finding, or award that does not otherwise conform to the terms and conditions of this
Agreement. The arbitrator(s) may render a summary disposition relative to all or some of the issues,
provided that the responding party has had an adequate opportunity to respond to any such application
for such disposition.
- Exceptions to Arbitration Requirement. Notwithstanding the foregoing in this
Section 16, either party is free to seek equitable relief in a court having jurisdiction in the event of
a breach or threatened breach of a party’s obligations with respect to Confidential Information or
intellectual property rights.
- Governing Law; Venue; Attorneys’ Fees. This Agreement shall be governed by and
construed in accordance with the substantive laws of the state of California, without regard to
conflicts of laws principles. Where permitted pursuant to this Section 16, the parties hereby consent to
personal jurisdiction of the courts of the State of California with respect to any permitted legal
action to enforce the terms and conditions of this Agreement or otherwise arising under or with respect
to this Agreement, and agree that the Superior Court of California, County of Orange, or, if applicable,
federal District Court sitting in the County of Orange, State of California, shall be the sole and
exclusive venue, and the State of California shall be the sole forum, for the bringing of such action.
The prevailing party shall be entitled to recover its reasonable attorneys’ fees, expenses and costs.
- Time Limitation for Claims. No action arising out of any claimed breach of this
Agreement may be brought by Client more than twelve (12) months after the event which gives rise to the
specific cause of action.
- GENERAL PROVISIONS
- Agreement. This Agreement and the related Exhibits and Order Form(s) attached
hereto are incorporated herein and collectively set forth the entire understanding and agreement between
the parties regarding the subject matter of this Agreement and supersede all prior or contemporaneous
proposals or communications, oral or written, between the parties relating to the subject matter of this
Agreement. ORAL OR WRITTEN STATEMENTS MADE BY SUREPREP’S SALES REPRESENTATIVES, IF ANY, DO NOT
CONSTITUTE WARRANTIES, SHALL NOT BE RELIED ON BY CLIENT, AND ARE NOT PART OF THE AGREEMENT. No text or
information set forth on any purchase order, preprinted form or document of Client shall add to or vary
the terms and conditions of this Agreement. The background recitals form a material part of this
Agreement. Other than as stated in this Agreement or an Order Form, no modification of this Agreement
shall be binding unless it is in writing and is signed by an authorized representative of each party. In
the event of any conflict between the terms of the Order Form and this Agreement, the terms of this
Agreement shall prevail. Each party has had an opportunity for their respective legal counsel to review
this Agreement; accordingly, no rule of construction against the drafter shall be applied. If any
provision in this Agreement is invalid or unenforceable, that provision shall be construed, limited,
modified or, if necessary, severed, to the extent necessary, to eliminate its invalidity or
unenforceability, and the other provisions of this Agreement shall remain in full force and effect. The
parties agree that the Services provided hereunder are considered provided in state of SurePrep’s
headquarters. No waiver of any right under this Agreement shall be deemed effective unless contained in
writing signed by a duly authorized representative of the party against which the waiver is sought to be
enforced, and no waiver of any past or present right arising from any breach or failure to perform shall
be deemed to be a waiver of any future right arising under this Agreement. This Agreement may be
executed in separate counterparts, each of which shall be deemed an original, and all of which together
shall constitute one agreement. The signature page of any party to any counterpart, and photocopies and
facsimiles thereof, may be appended to any other counterpart and when so appended, shall constitute an
- Assignment. This Agreement may not be assigned, transferred, or conveyed,
whether by contract, merger, or operation of law (collectively “assign” and its variants) by
Client without the prior written consent of SurePrep. Notwithstanding anything to the
contrary contained in this Agreement, in the event that ownership of SurePrep is materially changed
SurePrep may assign its rights and obligations under this Agreement through merger, acquisition or other
change in control. Any attempted assignment in violation of this Agreement shall be of no power or
- Notices. All notice, demands, consents or requests given by a party hereto shall
be in writing and sent either by (a) 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 applicable Order Form, in each case
to the attention of the chief executive officer of the other party, or (b) delivery via
electronic mail, addressed to the other party at the email address listed on the applicable order form.
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, or on the date sent by email provided
that nonautomated receipt of such email is retained.
- Cumulative Remedies. The various rights, options, elections, powers and remedies
of a party to this 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 might otherwise have in the event of breach
or default in the terms hereof. The exercise of one right or remedy by a party shall not in any way
impair its rights to any other right or remedy until all obligations imposed on a party have been fully
- Work From Home Authorization. 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 Service via a “work from home” arrangement rather than in SurePrep’s service
centers. SurePrep will shift the Service back to its service centers as soon as reasonably practicable.
If the Service is performed via a work from home arrangement, the Service will continue to be provided
in the same country as the Service would have been performed in the applicable service center (i.e.,
Service that was performed in a service center in the United States will continue to be performed in the
United States and Service that was performed offshore will continue to be performed offshore). SurePrep
acknowledges that security is important to Client and, except to the extent any such measures cannot be
feasibly implemented under a work from home arrangement, will continue an equivalent level of 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 Service 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 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 ACADEMY TERMS OF SERVICE
The terms of service (“TOS”) in this Exhibit A are incorporated in and form part of the Master
Agreement between SurePrep and Client.
- Overview. SurePrep has developed an online set of training programs to provide
training to its clients on SurePrep’s products and services as well as on other topics (the
“Courses”) which includes proprietary and/or confidential course content and training
materials in written form SurePrep has developed and continues to develop that are used with or ancillary to
the Course (“Content”). SurePrep is willing to provide Client the right to access the
Courses in accordance with the terms set forth in this TOS.
- License and Access Grant. Subject to Client’s continued compliance with the terms of
this Agreement, SurePrep grants Client a limited, nonexclusive, non-sublicensable, and nontransferable right
and license to access, use, and display the Courses, and to access, use, and make copies of the Content
solely (a) for the internal use of Client’s personnel (which, for the purposes of this Exhibit A means
Client’s employees as well as contractors who perform services which Client’s employees normally perform
(but not other contractors or service providers) (collectively, the foregoing is referred to the
“License”). All rights not specifically granted herein are reserved by SurePrep. The
License is provided by SurePrep at no additional charge to Client.
- Client’s Obligations; Restrictions on Use
- The Courses may be accessed only on servers and devices owned, leased, or controlled by Client, and
on devices owned or controlled by Client’s personnel. Client shall ensure that its personnel shall
make no use of or disclose the Courses other than in support of Client’s internal use under this
- Client may download and store the Content on its systems, but solely for its internal use. Client
may download and store on its systems, and replay, any Courses which SurePrep permits to be
downloaded, but solely for Client’s internal use. Except as provided herein, the Courses may not be
accessed, used, disclosed, or performed outside of Client’s facilities or systems. Client shall
ensure that its personnel comply with this obligation and Client shall be responsible for any
violation of this obligation by its personnel.
- Client shall not modify the Content in any way without the prior express written consent of
- Rights Notices. Client shall not alter, remove, or cover any copyright or other proprietary
rights notices that are associated with any Content.
- User Content. Where enabled and permitted Client and its personnel may create additional
materials, commentary, or the like (collectively, “User Content”) within the
Courses or the platform on which the Courses are provided. User Content available within the Courses
platform will be available only to Client. User Content shall be owned by Client, but Client agrees
to and does hereby grant to SurePrep a nonexclusive, worldwide, perpetual, irrevocable,
royalty-free, transferrable, and sublicensable right and license to all User Content (a) for
SurePrep’s internal use, (b) in furtherance of providing Courses and Content to Client, and (c) to
disclose, distribute, and perform the User Content (in whole or in part) to SurePrep’s other clients
and potential clients. Such right and license includes the right to modify, edits, and make
derivative works of all User Content. Client shall ensure that all User Content follows SurePrep’s
User Content Guidelines set forth below.
User Content Guidelines: Client shall not post or submit for posting any User Content that:
- Is off-topic, false, inaccurate, misleading, defamatory, libelous, stalking, threatening, obscene,
pornographic, indecent, vulgar, offensive, which contains unlawful material or information, or which
otherwise violate the legal rights (such as rights of privacy and publicity) of others;
- Harasses, degrades, intimidates, or is hateful toward an individual or group of individuals on the basis of
religion, gender, sexual orientation or identity, race, ethnicity, age, or disability;
- Is not Client’s own original creation or that Client not have permission to use or that infringes the
copyright, trademark, patent, or other proprietary right of any person or that is used without the
permission of the owner;
- Is intended to provide professional advice, including but not limited to, the provision of medical
treatment, or legal, financial or investment advice;
- Promotes or provides instructional information about illegal or illicit activities;
- Purports to be from any person or entity, including but not limited to one of SurePrep’s employees or
contractors, or falsely states or otherwise misrepresents Client’s affiliation with a person or entity;
- Includes personal or identifying information about another person without that person's explicit consent, or
- Contains software code of any kind, including, but not limited to, code that contain viruses, corrupted
files, or any other similar software or programs designed to or that may interrupt, lock up, destroy, damage
or limit the operation of another person's computer or network or telecommunications equipment;
- Disrupts the normal availability and performance of the Courses or Content; or,
- Advertises or offers to sell any goods or services not provided by Client, or engage in surveys, contests,
chain letters, or for any commercial purpose.
- Client shall be responsible for all User Content and shall indemnify, defend, and hold harmless
SurePrep for all Losses (as defined in the Agreement) arising from or related to the possession,
use, display, and transmission of User Content. This obligation shall survive any expiration or
termination of the Agreement.
- SurePrep’s Obligations. SurePrep shall use commercially reasonable efforts to
provide Client continuous access to the Courses and Content from or using SurePrep’s or its service
providers’ servers. SurePrep does not guarantee that the Courses will be accessible at all times. The
Courses may be unavailable during scheduled maintenance periods, during an emergency, or due to an event
beyond SurePrep’s or its service provider’s reasonable control. In addition to scheduled maintenance, there
may be events that will make the Courses inaccessible for a limited amount of time due to unforeseen
circumstances, such as, but not limited to, software, hardware, network, power and/or Internet problems or
outages. While SurePrep has no obligation to provide updates or additional Courses, it may do so at its sole
option from time to time. SurePrep has the right to change or remove any Content, format, or any other
aspect of the Courses or Content at its discretion with or without notice.
- Intellectual Property
- Ownership. The Client acknowledges that the Courses and Content are owned by SurePrep and/or
its licensors, and is protected by copyright and other intellectual property rights the ownership
and validity of which is acknowledged by Client. SurePrep retains ownership of all intellectual
property rights in the Courses and Content and in any modifications or derivative works therein.
- Feedback. Client may provide suggestions, comments, ideas, improvements, modifications,
adaptations, or enhancements or other feedback including, but not limited to, new topics, additional
materials, features, feature ideas, or functionality, or any questions, comments, suggestions,
ideas, original or creative materials, or other information relating to the Courses and Content
(collectively, “Feedback”). All Feedback shall be owned exclusively by SurePrep.
Client agrees to and does hereby assign to SurePrep automatically on creation or disclosure to
SurePrep all right, title, and interest in all Feedback, without any need for further consideration
or notice to Client.
- Custom Courses/Content. SurePrep and Client may, by separate agreement, engage to have
SurePrep create customized Courses and/or Content for Client for additional charge, and the
development, ownership, and use thereof shall be set forth in such separate agreement.
- Except for the License granted under this Agreement, nothing herein effects any transfer of any
right, title or interest in or to the course from SurePrep to Client or any third party. Client
shall cooperate with SurePrep in order to protect SurePrep’s intellectual property and other rights
related to the Content. Client shall promptly report to SurePrep any potential infringement of the
Content of which Client becomes aware.
- Disclaimer of Warranties. SUREPREP PROVIDES THE COURSES AND CONTENT “AS IS” WITH NO
WARRANTIES OR ANY KIND. SUREPREP EXPRESSLY DISCLAIMS ALL WARRANTIES RELATING TO THE COURSES, CONTENT, OR
SUREPREP’S PROVISION THEREOF. SUREPREP EXPRESSLY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT
NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND
SUREPREP SUPPORT LEVEL POLICY
This Support Level Policy(“SLP”) sets forth the performance objectives for the availability of the Hosted
Application Software. The remedies set out in this SLP are Client’s sole and exclusive remedy for issues covered by
the SLP. While we will not modify this SLP arbitrarily, we may do so from time-to-time. Should we make a change to
this SLP, we shall notify Client. The notification will set out the effective date of any changes.
System Accessibility Guarantees:
SurePrep will use commercially reasonable efforts to maintain availability of the Hosted Application Software for
access and use by Client (“available” and its variants, whether or not capitalized) 24x7
from January 15th through December 31st except for regularly scheduled maintenance periods
occurring Tuesday and Thursday mornings from 1:00 AM EST to 5:00 AM EST and Sunday mornings from 1:00 AM EST to 6:00
AM EST, as well as any other maintenance periods deemed necessary by SurePrep and communicated to Client at least
seven (7) days in advance (“Scheduled Maintenance”), and also except for emergency
maintenance. Our objective is for the Hosted Application Software to be available 99.5% measured on a calendar
monthly basis (i.e., the percentage of time during a month that the Hosted Application Software is available for
Client to use and functioning substantially in accordance with the Documentation, excluding Scheduled Maintenance,
emergency maintenance unavailability periods, and Force Majeure Events (“Availability Percentage”)).
Client acknowledges that interruptions and loss of service may periodically occur as a result of (i) Scheduled
Maintenance or emergency maintenance or repairs to the Hosted Application Software, a component thereof, or related
website, (ii) congestion, outages, or interruptions (including, without limitation, a Force Majeure Event (as
defined below)), provided, however, that a Force Majeure Event shall not excuse SurePrep from implementing its
disaster recovery or business continuity plan, (iii) hardware or software failures of Client’s equipment, (iv) any
failure or other interruption of Client’s Internet connection or telecommunications (not contracted for by
SurePrep), including any related connectivity hardware, (v) any domain name system (DNS), or outages, including
malicious attacks, distributed denial of service attacks (DDOS), DNS propagation issues and expirations elsewhere on
the Internet that are outside of SurePrep’s direction control, assuming SurePrep has appropriate redundancy,
failover internet and failover DNS in place, (vi) any outages of the core tax product, or, third party integrations,
or document management systems (such as Thomson Reuters or Wolters Kluwer) over which SurePrep has no direct
control, or (vii) an outage in Client’s technical environment, or act, or omission of Client or a third party,
including, without limitation, payor website unavailability or Client’s ineligibility to access such website, or
Internet connection being out of service (collectively, the period of time during the foregoing referred to as
“Downtime”), and SurePrep will not be responsible or liable for any interruptions caused
by the foregoing and such Downtime is not included the Availability Percentage calculation (i.e., Downtime does not
The Client minimum system configuration will meet the minimum system requirements as stated in the SurePrep Help
SLA Performance Remedy:
If the Availability Percentage falls below 99.5% in three (3) consecutive months in a given quarter or less than 90%
for any one (1) month (“Performance Failure”), then Client may, if it provides written
notice to SurePrep within thirty (30) days of the Performance Failure, terminate the Agreement immediately without
penalty other than for amounts due. This remedy is Client’s sole and exclusive remedy for SurePrep’s Performance
A “Force Majeure Event” means a cause or event beyond the reasonable control of the party
claiming delay of performance, including, but not limited to, (i) labor disputes, strikes, or lockouts (but
excluding nonunion labor shortage or disputes), or labor unavailability or workplace closure or restrictions as
required or recommended by government or agency due to pandemic, epidemic, or other widespread health emergency
(e.g., viruses or other diseases, such as, but not limited to, COVID-19, SARS, etc.); (ii) riots, war, acts of
terrorism, or other civil disturbance; (iii) fire, flood, earthquake, tornado, hurricane, snow, ice, lightning, or
other natural disasters, elements of nature or acts of God, (iv) outages, cable cuts, power crisis shortages,
infrastructure outages or failures, internet failures, interruption or failure of telecommunications carriers or
digital transmission links, network congestion, computer equipment failures, telecommunication equipment or other
equipment failures, electrical power failures, loss of or fluctuations in heat, light, or air conditioning, all of
the foregoing in this clause (iv) being of or due to third party providers or utility service providers; (v) acts of
computer, system, or network sabotage or file lockup (e.g., ransomware attack), DDOS or other network attacks,
intrusion, or other failures not arising out of a breach of SurePrep’s data security obligations set forth in the
Agreement; (vi) any law, order, regulation, direction, action or request of the United States, state or local
governmental agency, department, commission, court, bureau, corporation or other instrumentality of any one or more
of such instrumentality, or of any civil or military authority, or national emergencies, including imposing an
embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial
government shutdown; (vii) change in law or regulation making performance impracticable without having material
impact on such party’s ability to perform under this Agreement without material increase in cost, resources, or
time; or, (viii) national or regional shortage of adequate power or telecommunications or transportation. or, (ix)
supply chain interruption due to any of the foregoing.
If SurePrep is prevented from making the Hosted Application Software available due to a Force Majeure Event,
SurePrep shall promptly provide written notice to Client.