CCH Small Firm Services 2008 License Agreement for Online Applications Terms and Conditions

Transcription

1 CCH Small Firm Services 2008 License Agreement for Online Applications Terms and Conditions Universal Tax Systems, Inc. d/b/a CCH Small Firm Services, its successors, and assigns ( CCH SFS ) licenses all of its software pursuant to an end user license agreement. This 2008 LICENSE AGREEMENT FOR ONLINE APPLICATIONS ( Agreement ) governs any CCH SFS web-based software application that is accompanied by an electronic copy of this Agreement, which can be viewed when you initially access the application or at any time by visiting our web sites. By accessing or using the software application(s) governed by this Agreement or by otherwise indicating acceptance (electronically or otherwise) of this Agreement, You acknowledge that You have read, understood and agreed to the terms set forth below. If You do not agree with this Agreement in its entirety, then You should not access or use the Application. 1. Definitions 1.1. Account means the private virtual section of the Application as it directly relates to any particular end user, including the controls and data unique to such user Account Access Information means the private access information (for example, username and password) used by each individual user of the Application to access his/her individual Account Application shall collectively mean (i) the web-based software application(s) and components that are governed by this Agreement; (ii) related materials such as reference manuals, help screens and operating instructions; and (iii) any updates of such application(s) or materials to which the end user may be entitled under the terms of this Agreement, unless such updates contain a revised version of this Agreement to which the end user must then agree as a condition to the use of such updated application(s) and materials Deliverables means all services and materials, and the related benefits, available from CCH SFS or its authorized affiliates for use in connection with the Application (e.g., electronic filing) Registered Location means the single site, physical location, and/or address for which the end user registers his/her use of the Application, as may be required in order to activate the Application You and Your shall refer to the end user of the Application, as evidenced by the records of CCH SFS or its authorized designee(s). 2. License 2.1. Grant. CCH SFS hereby grants You (pursuant to the terms of this Agreement) a personal, limited, nonexclusive, nontransferable contractual right and license to access and use the Application that has been licensed to You or Your firm as specified on the order confirmation issued to You by CCH SFS or its authorized affiliates, or as otherwise specified in the records of CCH SFS or such authorized affiliates. Except as otherwise permitted in writing by an authorized representative of CCH SFS, use of the Application is limited to the Registered Location. Use of the Application at locations other than the Registered Location requires the purchase of an additional location license for each additional location. If a desktop version of the Application exists, then Your ability to use and access such desktop version will depend on Your purchase of a separate license and/or on Your agreement to additional or unique terms or to a separate agreement; any such terms or agreement will be provided during installation of that software. All uses of the Application beyond its intended purpose must be approved in writing by CCH SFS prior to such use. Access to the Application is limited to specific individuals working at the Registered Location and for whom unique Account Access Information has been established and registered Improper Acquisition of Application. This Agreement expressly prohibits You from using the Application or any CCH SFS product or service that has been improperly obtained and/or accessed. For purposes of illustration, but not limitation, examples of improperly obtained means of access to the Application include: i) access that has been obtained by using Account Access Information established for use by another individual, regardless of how such Account Access Information has been acquired; ii) access that is acquired from an unauthorized reseller or distributor (if You have doubts about whether a person is an authorized reseller of CCH SFS software, please [email protected] to confirm authorization); iii) access that is acquired by pirating, cracking or hacking the Application; iv) access that has been acquired with the intent or for the purpose of using it in a manner that is illegal, fraudulent, in violation of this Agreement or otherwise outside the normal, stated and/or reasonably understood purpose of the Application; v) access that is acquired with the use of false or inaccurate statements and/or information (e.g., false name, contact information, EFIN, or payment information; false declaration of the total number of end users; or false claim of ownership of multiple business locations with the intention of obtaining a multi-office discount); or vi) access that is made outside of the Registered Location Restrictions. Without the express written consent of CCH SFS You must not: (i) attempt to copy, view, read, modify, reverse compile, reverse assemble, disassemble or print the Application source code or object code or other runtime objects or files within the Application; (ii) otherwise reverse engineer, modify or copy the look and feel, functionality or user interface of any portion of the Application; (iii) rent, lease, provide or otherwise make 1

2 available the Application, in any form, to any third party; (iv) share Your Account or Account Access Information (i.e., username and password) to the Application with other individuals; (v) reproduce, publish, distribute or sell any content retrieved through the Application (even if in the public domain), except in instances where reproduction of such content is expressly permitted by CCH SFS. You are responsible for protecting the confidentiality of Your Account Access Information and for all use of the Application through use of Your Account Access Information and for ensuring that all use thereof complies fully with the provisions of this Agreement Reservation of Rights. CCH SFS, and its applicable suppliers, retain all proprietary rights in the Application. CCH SFS, and its applicable suppliers and/or licensors', reserve all patent, copyright, trade secret, trade name, trademark, and other proprietary rights related to the Application and Deliverables, which are protected under United States intellectual property laws and International Treaty Provisions. Unauthorized use of the Application shall result in termination of Your rights under this Agreement as well as possible civil damages and criminal penalties. You acknowledge and agree that CCH SFS and its applicable suppliers and/or licensors' retention of contractual and intellectual property rights is an essential part of this Agreement U.S. GOVERNMENT RESTRICTED RIGHTS. The Application is provided with RESTRICTED RIGHTS. Use, duplication or disclosure of the Application by the United States Government is subject to restrictions as set forth in FAR or DFARS (a), (a) and (1995) and, to the extent required under U.S. federal law, the minimum restricted rights as set out in FAR (DEC 2007) or FAR (DEC 2007). To the extent any Technical Data is provided pursuant to the Agreement, such data is protected per FAR and DFARS and to the extent explicitly required by the U.S. Government, is subject to limited rights as set out in DFARS (NOV 1995) and DFARS (SEPT 1999). In the event that any of the above referenced agency regulations are modified or superseded, the subsequent equivalent regulation shall apply. The name of the manufacturer is Universal Tax Systems, Inc. d/b/a CCH Small Firm Services, 6 Mathis Drive, NW, Rome, Georgia Warranties 3.1. Limited Warranty. THE APPLICATION, THE DELIVERABLES, AND ANY THIRD PARTY SOFTWARE ARE PROVIDED AS IS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. YOU BEAR THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE APPLICATION AND THE DELIVERABLES. CCH SFS DOES NOT WARRANT THAT THE APPLICATION OR DELIVERABLES WILL BE UNINTERRUPPTED OR THAT THE APPLICATION WILL PROPERLY OPERATE ON ANY SPECIFIC OPERATING SYSTEM OR COMPUTER HARDWARE OR CONFIGURATIONS OR BEFORE OR AFTER ANY SPECIFIC DATE OR TIME PERIOD. CCH SFS SHALL IN NO EVENT BE LIABLE TO YOU OR ANY OTHER PERSON FOR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL OR TORT DAMAGES OR FOR ANY LOST PROFITS ARISING OUT OF THE USE OF OR INABILITY TO USE THE APPLICATION, ANY DELIVERABLES, AND/OR ANY THIRD PARTY SOFTWARE, EVEN IF CCH SFS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY OTHER CLAIM BY YOU OR ANY OTHER PERSON Limitation of Liability and Remedy. You agree that regardless of the form of any claim, CCH SFS entire liability and Your exclusive remedy for damages arising out of or connected with this Agreement (including but not limited to damages due to performance or non-performance of the Application and/or any Deliverables) shall be limited to the return of the license fees that You paid to CCH SFS for the Application, or $10.00, whichever is greater Assumption of Risk. CCH SFS is not an insurer with regard to performance of the Application or Deliverables. The terms of this Agreement, including but not limited to the license fees, the limited warranties and the limitation of liability and remedy are a reflection of the risks assumed by the parties in order to obtain access to the Application at the specified license fees. You agree to assume the risk for: (a) all liabilities disclaimed by CCH SFS contained herein, and (b) all alleged damages in excess of the amount of the limited remedy provided hereunder. The essential purpose of the limited remedy provided to You hereunder is to allocate the risks as provided above Protection of Account Access Information. Each individual user of the Application is supplied with private Account Access Information that is used to log into that user s Account within the Application. Each user s Account is private and can only be accessed by use of that user s Account Access Information. You are fully responsible for protecting the confidentiality of Your account information. You acknowledge and agree that You are responsible for all use of the Application as made through Your Account by any person and for insuring that all use of Your Account is for authorized purposes only and complies fully with the provisions of this Agreement. You agree to indemnify and hold harmless CCH SFS, its employees, officers, directors and affiliates from and against all claims and expenses, including reasonable attorney s fees, relating to the use of the Application and/or other Deliverables through Your Account The Internet. You acknowledge that the delivery systems used for the Application, namely the Internet and the World Wide Web, are known to be unpredictable in their performance and may, from time to time, impede access to the Application or other Deliverables or performance hereunder. You agree that CCH SFS is not in any way responsible for any such interference with Your use of or access to the Application or other Deliverables and You waive any and all claims against CCH SFS in connection therewith. You also acknowledge that while CCH SFS 2

3 has taken significant measures to ensure the security of information submitted by You in the preparation of tax returns and in relation thereto, there is no guarantee or assurances of any nature whatsoever of the security of this information, and You waive any and all claims against CCH SFS in connection therewith. 4. Termination; Suspension 4.1 Expiration or Termination of Agreement. The license granted hereunder will automatically expire on October 31, CCH SFS may terminate this Agreement immediately upon notice to You if You breach this Agreement or any other agreement with CCH SFS or any affiliate of CCH SFS or if You fail to comply with any of the terms or conditions herein. CCH SFS may terminate this Agreement at any time if You do not pay license or other fees when due. Termination of this Agreement shall not affect the sums due or paid hereunder or any additional remedies for CCH SFS provided by law or equity. Termination of this Agreement for breach shall not require payment of a refund to You. 4.2 Termination of Deliverables. CCH SFS reserves the right to cancel, terminate, discontinue, or otherwise restrict access to any and all of the Deliverables if CCH SFS decides in its discretion that there is good reason to do so. CCH SFS representations and offers regarding Deliverables may change at CCH SFS discretion with or without notice to You. 4.3 Suspension of Account. CCH SFS may suspend or terminate (as appropriate) Your use of the Application at any time in order to: (i) prevent damages to, or degradation of CCH SFS Internet network integrity; (ii) comply with any law, regulation, court order, or other governmental request or order which requires immediate action; or (iii) otherwise protect CCH SFS from potential legal liability. CCH SFS shall use commercially reasonable efforts to notify You of the reason(s) for such suspension or termination action as soon as reasonably practicable. In the event of a suspension, CCH SFS shall promptly restore use of the Application to You as soon as the event giving rise to the suspension has been resolved. Nothing contained in this Agreement shall be construed to limit CCH SFS actions or remedies in any way with respect to any of the foregoing activities. 5. Updates; Product Support. CCH SFS may, if practical and appropriate, update the Application from time to time. However, updating shall be at CCH SFS discretion and CCH SFS shall have no obligation, express or implied, to update the Application. CCH SFS also has the right at any time to change or discontinue any aspect or feature of the Application including but not limited to content, functionality, hours of availability, and equipment needed for access or use. CCH SFS may also offer, in its discretion, product support for the Application remotely from its Georgia offices. You agree that You and/or your employees will not place more than one call at any given time to CCH SFS telephone support number(s) regarding the same situation, support question, issue or matter. Product Support will be provided only for the most current version of the Application and only if it is used on the hardware and operating systems recommended in the documentation for the Application. Any updates and product support offered by CCH SFS will not be available after termination of Your license hereunder. CCH SFS will retain all of the data that You have properly submitted to CCH SFS' online servers only for a limited time after the termination of Your license. CCH SFS will then maintain the data in accordance with its internal business practices, as well as in compliance with all applicable laws and regulations. 6. Contact Information; Data Transmissions; Suggestions 6.1. Contact Information. You agree to provide to CCH SFS Your current contact information, including Your address, phone number, fax number and address. You also agree to provide CCH SFS with Your EFIN, as well as proof of the EFIN holder s name and address, if You will be using the Application to electronically file taxes Suggestions & Enhancements. Any and all title, ownership rights, and intellectual property rights concerning any ideas, concepts, suggestions, materials and the like that You provide to CCH SFS regarding the Application or any other CCH SFS software or Deliverable shall become the exclusive property of CCH SFS and may be used for its business purposes in its sole discretion without any payment, accounting, remuneration or attribution to You. 7. Professional Responsibility 7.1. You understand and agree that use of the Application does not relieve You of responsibility for the preparation, content, accuracy, and review of tax returns prepared by You while using the Application or other materials or information generated by You while using the Application. You acknowledge that You do not rely upon CCH SFS for advice regarding the appropriate treatment of tax, accounting and/or other matters. Both parties acknowledge that You will review any computations made by the Application and satisfy Yourself that those computations are correct You accept full responsibility for: (i) selection of adequate and appropriate versions of the Application to satisfy Your business needs and achieve Your intended results; (ii) use of the Application; (iii) all results obtained from the Application; and (iv) selection, use of, and results obtained from any other programs, computer equipment or services used with the Application. You acknowledge that You must retrieve in a timely manner electronic communications made available to You by CCH SFS (for example, electronic filing transaction data such as 3

4 acknowledgements and messages in Your mailbox). Such communications may become unavailable if not retrieved within five (5) business days of being made available by CCH SFS You agree to take full responsibility for any and all liability relating to Your use of the Application (including, without limitation, preparation of tax returns processed using the Application), the Deliverables and/or third party software. You agree to indemnify and hold harmless CCH SFS, its employees, officers, directors and affiliates against any and all liability to the United States government or other parties relating to the use of the Application, the Deliverables and/or third party software (including damages, recoveries, deficiencies, interest, penalties and reasonable attorney s fees). You agree to comply with all applicable rules, regulations and procedures of the United States government and all applicable state authorities By accepting this Agreement, You represent and warrant that no third-party agreement prohibits You from licensing and/or using the Application or any Deliverable for any reason. You agree to indemnify and hold harmless CCH SFS, its employees, officers, directors and affiliates against any and all liability to any third-party to whom You have any such contractual or legal obligation, including damages, interest, and reasonable attorney s fees. 8. Miscellaneous 8.1. Evaluation Copies of Application. If You are accessing a version of the Application that in some way is offered, labeled or characterized as an evaluation version, then all terms of this Agreement will govern Your use except as modified by this subsection 8.1. An evaluation version is licensed to You for evaluation purposes only without charge, for a limited period of time. Certain functionality of the evaluation version of the Application may be disabled or restricted, including the e-filing and certain printing rights. Commercial use of an evaluation version of the Application without acquiring an additional license from CCH SFS is not authorized, is outside the scope of this Agreement, and is a violation of U.S. and international copyright laws. If You wish to use the Application for purposes other than evaluation, then You must purchase a user license for the Application from CCH SFS.. Please refer to the materials accompanying the evaluation version of the Application for information about pricing and ordering options Entire Agreement. This Agreement constitutes the entire and exclusive agreement, understanding and representation, express or implied, between You and CCH SFS with respect to the Application and the Deliverables to be furnished hereunder; it is the final expression of that agreement and understanding, and it supersedes all prior communications between the parties (including all oral and written proposals). Oral statements made by CCH SFS sales representatives about the Application and/or the Deliverables do not constitute warranties, shall not be relied on by You, and are not part of this Agreement Other Application and License Agreements. CCH SFS reserves the right to modify, in its discretion, its software license agreement for: i) future versions, updates, or upgrades of the Application; and/or ii) an Application that has been released for full use (in cases where this Agreement is being distributed with Evaluation software). Some software published by CCH SFS and/or distributed with the Application may require that You agree to a separate license or user agreement as a condition of its use, which will be provided specifically for that product (including, without limitation, software that is licensed from third-parties). If You have entered into a separate written license agreement with CCH SFS for use of the Application, the terms and conditions of such other agreement shall prevail over any conflicting terms or conditions of this Agreement. All rights and obligations with respect to CCH SFS provided third party software programs shall be governed exclusively by the terms and conditions of agreements provided by suppliers of said third party software program and You hereby release CCH SFS from all liability and responsibility with respect thereto Additional Fees. Additional transaction fees may be charged for Your use of certain Deliverables. You agree to pay such fees when due. Your order confirmation, the published product descriptions, or other documents that may be provided in connection with some Deliverables will contain information concerning applicable fees Export Restrictions. You are advised that the Application is subject to the U.S. Export Administration Regulations and diversion contrary to U.S. law and regulation is prohibited. You agree not to directly or indirectly export, import or transmit the Application to any country, end user or for any end use that is prohibited by any applicable U.S. regulation or statute (including but not limited to those countries embargoed from time to time by the U.S. government). Additionally, You agree not to directly or indirectly export, import, transmit or use the Application contrary to the laws or regulations of any other governmental entity that has jurisdiction over such export, import, transmission or use. You represent and agree that neither the United States Bureau of Industry and Export Administration nor any other governmental agency has issued sanctions against You or otherwise suspended, revoked or denied Your export privileges Survival. Subsections 2.2, 2.3, 2.4, 2.5 and Sections 3, 7, and 8 shall survive termination of this Agreement Charges and Fees. You are responsible for paying all fees and charges (plus applicable taxes) associated with the use of the Application and other Deliverables under your Account. 4

5 8.8. Means of Access. You are solely responsible for obtaining and maintaining all telephone, computer hardware, software, Internet service, and all other equipment and utilities needed for access to and use of the Application, and for all costs associated therewith Bank Products. CCH SFS is not a lender, broker or originator of bank products. Bank products are offered by participating banks only. Participating preparers must be qualified and approved by the bank. Participation in bank product programs is subject to all applicable requirements, terms, and conditions. You shall not use or attempt to use the Application in conjunction with offering tax refund related bank products of any financial institution that is not authorized by CCH SFS Assignment. Neither the licenses granted hereunder nor the Application may be sublicensed, assigned, sold, hypothecated, or transferred by You without the prior written consent of CCH SFS. Any attempt to sublicense, assign or transfer any of the rights, duties or obligations under this Agreement without the prior written consent of CCH SFS shall terminate the licenses automatically and shall be void and of no effect. You agree that CCH SFS retention of these contractual and other legal rights is an essential part of this Agreement Equitable Relief. You acknowledge that the Application and other proprietary information of CCH SFS are unique and that, in the event of any breach of this Agreement by You, CCH SFS 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 damages Disputes. The parties hereto, and each of them, acknowledge that they have had the opportunity to be represented by independent counsel of their choice prior to entering this Agreement. You agree that this Agreement shall be interpreted and enforced according to the laws of the State of Georgia, without any regard to conflicts of law rules, and shall be treated as if executed and performed in Fulton County, Georgia. All disputes surrounding the performance of this Agreement and/or Deliverables shall be instituted and prosecuted exclusively in Fulton County, Georgia, with You specifically consenting to extraterritorial service of process for that purpose. You shall pay all of CCH SFS attorneys fees and costs incurred in the enforcement of any of the provisions of this Agreement; and You additionally agree to pay all costs of collection of all sums collected under this Agreement, including a reasonable attorney s fee of not less than fifteen (15%) percent of the amount placed for collection if the same is collected by or through an attorney at law Waiver of Jury Trial. EACH PARTY, TO THE EXTENT PERMITTED BY LAW, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS IT CONTEMPLATES. EACH PARTY ACKNOWLEDGES THAT IT HAS RECEIVED THE ADVICE OF COMPETENT COUNSEL Notices. All notices, demands, consents, or requests which may be or are required to be given by any party to another party shall be in writing (which may include ). No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by CCH SFS and You are given a reasonable opportunity to accept or reject such supplement, modification or amendment, except as otherwise set forth in Section 8.3. In the event that any of the provisions, or portions thereof, of this Agreement are held to be unenforceable or invalid by any court of competent jurisdiction, the validity and enforceability of the remaining provisions and portions thereof of this Agreement shall not be affected thereby Waiver. CCH SFS' failure or delay to require compliance with the conditions of this Agreement, or to exercise any right provided herein, shall not be deemed a waiver by CCH SFS of such condition or right Force Majeure. Except for payment obligations, neither party hereto shall be held liable for the failure to perform any obligation, or for the delay in performing any obligation, arising out of or connected with this Agreement if such failure or delay results from or is contributed to by any cause beyond the reasonable control of such party including, but not limited to, failures or delays caused by the act or omission of any governmental authority, fire, flood, or other event beyond such party s reasonable control Authority to Agree. You represent and warrant that You are a representative of the person or entity intending to license and use the Application and that You are duly authorized to enter into this Agreement on behalf of that person or entity In the event that You are reading this Agreement prior to Your ability to access the Application, access to the Application will be made available at a future date, when the Application becomes available to the entire client base of CCH SFS. You acknowledge that the Application and all updates thereof are pre-written software of general application. All Deliverables will be delivered to You remotely via interstate means from CCH SFS offices. 5