This MASTER AGREEMENT (which includes the SurePrep Online Storefront
(“Storefront”), together with the Order Form(s) and all Schedules, Addenda, and
Exhibits attached hereto, collectively referred to as the “Agreement”) is made
effective, (a) if this Agreement entered into by the parties via a signed Order Form, on the effective date set forth
on the Order Form, or (b) if this Agreement is presented in our Storefront, on earlier of (i) the date when you click
the “I agree to the MASTER AGREEMENT” button or check box presented with these terms or, (ii) 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.
- Authorized Users means, with respect to any entity, each employee, consultant, independent contractor, agent or representative of such 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.
- 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. De-Identified 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.
- 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.
- Service Providers means SurePrep's contractors and other third parties which provide
services (such as, but not limited to, data hosting, software support, etc.) in support of SurePrep's provision
of the Services, as well as third parties whose software is integrated in the Software.
- 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 applicable):
- “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 applet;
- “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 applet;
- “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
- Sponsored Tax Year means each prior Tax Year for which Client pays the TaxCaddy
- 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
- 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,
nonexclusive, 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
- 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 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 solely 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, the foregoing only being applicable
in the event and to the extent that Client possesses from any of its clients the ability to login and
retrieve such client's financial and payroll institutions documents and data using such client's login
credentials and personal information. Any such login credential and personal information shall be protected
by SurePrep and its Service Providers in accordance with the terms set forth in Section 8 hereof.
- 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 financial and
payroll institutions' (including, but not limited to, bank and brokerage-related) third-party sites on
Client's and its users' and taxpayers' behalf the foregoing only being applicable in the event and to the
extent that Client possesses from any of its clients the ability to login and retrieve such client's
financial and payroll documents and data using such client's login credentials and personal information.
Such 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 described herein, Client hereby grants SurePrep and
its Service Providers the right to access such 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 (and
SurePrep's Service Providers) right to access information at such third-party sites on Client's behalf, or
(ii) subject to Section 3.3, request deletion of information collected from such 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
SUCH THIRD-PARTY SITES, EACH IS ACTING AT CLIENT'S REQUEST AND WITH CLIENT'S PERMISSION AND AUTHORIZATION,
AND NOT ON BEHALF OF SUCH THIRD-PARTY SITES.
- Use of Data.
- “Derivative Information” means, collectively, (i) information derived or generated from or
based on Client Data, but not containing Client Data, (ii) Client Data which has been de-identified or
anonymized so that it no longer identifies an specific individual; and, (iii) Client Data which has been
aggregated with other data but which no longer identifies a specific individual. During this Agreement and
after any expiration or termination SurePrep may create and use Derivative Information for any legitimate
business purpose of SurePrep without a duty of accounting to Client, such purposes including, but not
limited to, (a) to create, test, train, and inform algorithms, machine learning and product automation; (b)
to create, train, and test machine learning models for tax preparation and verification automation and
quality detection, and (c) to develop, create, extract, compile, synthesize, analyze and commercialize
statistics, analytics, metrics, reports, benchmarks, measures and other information, and (d) to improve or
develop trained models, products or services.
- Other than as permitted in this Agreement, neither SurePrep nor its Service Providers will sell, rent,
disclose, disseminate, make available, or transfer Client Data to any third party in exchange for the
promise or receipt by SurePrep of monetary or other valuable consideration, other than a disclosure or
transfer in connection with the sale or transfer of SurePrep's business.
- Derivative Information will be owned solely by SurePrep.
- 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 Agreement.
- 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.
- 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 permitted
- 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 Agreement.
- 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
- 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
- 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 suspended accounts.
- 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
- 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 9.3. 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
- Limited Warranty for Hosted Application Software. SurePrep warrants that (i) the
Hosted Application Software will conform in all material aspects to the Documentation for a period of ninety
(90) days after delivery and (ii) 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) Client will comply with all applicable laws, rules, and regulations including those relating to professional ethics, conduct, and advertising; (iii) Client has all necessary authority and licenses for all third party software that Client and/or its Service Providers use with the Service; (iv) Client has, and covenants with SurePrep that all times during the term of this Agreement it shall maintain in full force and effect, all authorizations, rights and licenses that are necessary for SurePrep and its affiliates and Service Providers, and their respective Authorized Users (collectively, the “SurePrep Authorized Parties”) to access and use Client’s selected third party software through manual or automated means to provide the Service (or any other services that may be requested by Client from time to time), including, without limitation: (A) the right for the SurePrep Authorized Parties to access and use any third-party application programming interface as required by Client to perform the Service (or any other services that may be requested by Client from time to time) and (B) the right for the SurePrep Authorized Parties to install and use any third-party software licensed to Client that is required by Client to perform the Service (or any other services that may be requested by Client from time to time); and (v) the performance of this Agreement by SurePrep and its affiliates and Service Providers and their respective Authorized Users will not conflict with or violate or constitute a breach of the terms of any agreement or other obligation to which Client or any of its affiliates is subject or bound. 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 and warrants to SurePrep (A) that Client is a legal owner, or an authorized user, of the accounts at third party sites which Client includes or accesses through the Services, and (B) that Client has, and covenants with SurePrep that at all times during the term of this Agreement it shall maintain in full force and effect, all authorizations, rights and licenses that are necessary for Client to (a) designate SurePrep and its affiliates and Service Providers as Client’s agent for such purpose, (b) use the Services, and (c) provide SurePrep and its affiliates and 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.
- Client shall promptly notify SurePrep, in writing, if and as soon as it becomes aware of any condition or circumstance which makes any of the representations, warranties or covenants in this Section 12 incomplete, incorrect or inaccurate in any material respect as of any date.
- 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 or requirements.
- 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 14.1 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, upon written demand by SurePrep, defend, indemnify, and hold harmless SurePrep and its affiliates and its and their respective officers, directors, employees, Service Providers, agents, and representatives 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 any representations, warranties or covenants of Client set forth in this Agreement. The foregoing obligations in this paragraph shall survive any expiration or termination of this Agreement.
- 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
- 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 original.
- 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 effect.
- 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
- 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 performed.
- 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 other individuals who work directly for SurePrep on an independent contractor basis and who will have access to Client Data (referred to as “Individuals” solely for the purposes of this Section 17.5) 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 Individuals who perform the Service via a work from home arrangement to execute an acknowledgement that such Individual is bound by the same confidentiality, privacy and nondisclosure obligations such Individual is bound by when working in SurePrep’s service centers or other facilities. 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'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 Agreement.
- 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 SurePrep.
- Rights Notices. Client shall not modify the Content in any way without the prior express written
consent of SurePrep.
- 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 constitutes doxxing;
- 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 NONINFRINGEMENT.
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
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 penalize SurePrep).
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 Failure.
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.