This Software License and Services Agreement (this “Agreement”) is entered into as of the Effective Date (as defined below) by and between Licensee (as defined below) and WEELTH GROUP, INC, a Delaware public benefit corporation (“Licensor”, and together with Licensee, the “Parties”, and each, a “Party”).
WHEREAS, Licensor offers software solutions to tax preparers to facilitate tax return processing;
WHEREAS, Licensee provides tax preparation services and desires to utilize Licensor’s software to perform tax return processing; and
WHEREAS, Licensee desires to obtain the software solutions (as detailed below) from Licensor.
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
| Term | Definition |
|---|---|
| Licensee | "Licensee" refers to the signatory of this Agreement, whose legal status (entity of any form) is recognized under the applicable laws of their jurisdiction. The term encompasses the contractual party whose acceptance of the terms herein is indicated by their execution of this Agreement. |
| Effective Date | "Effective Date" means the date on which this Agreement is signed by both parties, or, if not signed on the same day, the date on which it is accepted at checkout from the Licensee. |
| Expiration Date | A year from the date of purchase of the software. |
| Primary Contact Person | "Primary Contact Person" refers to the individual designated by the Licensee to act as the main point of contact for all matters related to this Agreement. The contact details of the Primary Contact Person are to be provided in the attached schedule. |
| Licensee Address | "Licensee Address" refers to the address provided by the Licensee in the attached schedule of this Agreement. This address is recognized as the official location for delivery of all formal communications and notices regarding this Agreement. |
| Licensee Email | "Licensee Email" denotes the email address ascribed to the Licensee, as provided in the attached schedule of this Agreement. This email address will be used for all official electronic communications related to the Agreement. |
2.1. “Acceptance Criteria” means the specifications and Documentation provided by Licensor and any other requirements set forth in this Agreement.
2.2. “Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
2.3. “Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person through ownership of more than fifty percent of the voting securities of a Person.
2.4. “Agreement” has the meaning set forth in the preamble.
2.5. “Authorized User” means Licensee and each of Licensee’s employees or contractors who perform tax preparation duties for Licensee and who are permitted to perform such tax preparation duties under all applicable Laws.
2.6. “CCH” has the meaning set forth in Section 3.5.
2.7. “Confidential Information” means all information in any form or medium (whether oral, written, electronic, or other) that Licensor provides to Licensee under or in furtherance of this Agreement, including but not limited to information consisting of or relating to Licensor’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which Licensor has contractual or other confidentiality obligations, whether or not marked, designated, or otherwise identified as “confidential.” Without limiting the foregoing, the following are Confidential Information: (a) the SmartWiz Platform; (b) the TaxWise Software; (c) the Documentation; and (d) all Data.
2.8. “Data” means (a) all information, including but not limited to personal information and financial information, inputted into the SmartWiz Platform or TaxWise Software by Licensee or Licensee’s Clients and (b) all information produced by the SmartWiz Platform and the TaxWise Software.
2.9. “Data Security Requirements” means, collectively, all of the following to the extent relating to Data Treatment, or otherwise relating to personal information data protection, privacy, security, or security breach notification requirements and applicable to Licensee, to the conduct of Licensee’s tax preparation business, or to any of Licensee’s systems or any business data: (a) Licensor’s rules, policies, and procedures; (b) Licensee’s rules policies, and procedures; (c) all applicable federal and state privacy Laws; (d) industry standards applicable to the tax preparation industry; and (e) any public commitments or statements made by Licensee.
2.10. “Data Treatment” means the access, collection, use, import, export, processing, storage, sharing, distribution, transfer, disclosure, security, destruction, or disposal of any Data or Confidential Information.
2.11. “Documentation” means all documentation, in any form or medium, that Licensor provides or makes available to Licensee under or in furtherance of this Agreement which describe the functionality, components, features, or requirements of the SmartWiz Platform or the TaxWise Software, including but not limited to any aspect of the installation, configuration, integration, operation, or use of the SmartWiz Platform or the TaxWise Software.
2.12. “EFIN” has the meaning set forth in Section 13.3.
2.13. “Fees” has the meaning set forth in Section 7.1.
2.14. “Force Majeure Event” has the meaning set forth in Section 18.9.
2.15. “Government Authority” means any government or political subdivision, whether federal, state, or local, or any agency or instrumentality of any such government or political subdivision, or any federal, state, or local court or arbitrator having competent jurisdiction, as well as any accrediting body.
2.16. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights Laws, and all similar or equivalent rights or forms of protection, in any part of the world.
2.17. “IRS” means the Internal Revenue Service.
2.18. “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
2.19. “Licensee’s Clients” means the Persons for which Licensee prepares and files taxes using the SmartWiz Platform and the TaxWise Software under this Agreement.
2.20. “Licensor” has the meaning set forth in the preamble.
2.21. “Licensor Indemnitee” has the meaning set forth in Section 14.1.
2.22. “Losses” means all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
2.23. “Open Source Components” means any software component that is subject to any open source license agreement, including any software available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that is approved by the Open Source Initiative.
2.24. “Open Source License” has the meaning set forth in Section 3.5.
2.25. “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
2.26. “PTIN” has the meaning set forth in Section 13.1.1.
2.27. “Representatives” means, with respect to a Party, that Party’s and its Affiliates’ employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors, and legal advisors.
2.28. “Services” has the meaning set forth in Section 6.
2.29. “SmartWiz Platform” means the object code version of the proprietary SmartWiz software provided by Licensor, including the files, databases, documentation, materials, modifications, revisions, option features, and functionality, enhancements, and updates, if any, and including artificial intelligence chat features, customer relationship management capabilities, and any other functionalities developed and incorporated by Licensor.
2.30. “TaxWise Agreements” has the meaning set forth in Section 3.5.
2.31. “TaxWise Software” means the TaxWise software licensed under the TaxWise Agreements and provided by Licensor.
2.32. “Term” has the meaning set forth in Section 16.1.
2.33. “Territory” means the United States of America.
2.34. “Third-Party Materials” means materials and information, in any form or medium, that are not proprietary to Licensor, including the TaxWise Software and any third-party: (a) documents, data, content or specifications; (b) Open Source Components or other software, hardware, or other products, facilities, equipment or devices; and (c) accessories, components, parts, or features of any of the foregoing.
3.1. License Grant. Subject to and conditioned on Licensee’s payment of the Fees and compliance with all other terms and conditions of this Agreement, Licensor hereby grants Licensee a non-exclusive, non-sublicensable, and non-transferable license to use during the Term of this Agreement:
3.2. Delivery. Licensor shall deliver a custom URL to Licensee for Licensee to access the SmartWiz Platform.
3.3. Acceptance. Licensee has thirty (30) days following the Effective Date to test whether the SmartWiz Platform and the TaxWise Software conforms in all material respects to the Acceptance Criteria. If Licensee believes that the SmartWiz Platform or the TaxWise Software fails to conform in any material respect to the Acceptance Criteria, Licensee must provide written notice to Licensor within 30 days following the Effective Date detailing the non-compliance, and Licensor will either correct the non-conformities or provide an acceptable workaround in a timely manner. If Licensee does not send written notice within 30 days following the Effective Date, then the SmartWiz Platform and the TaxWise Software will be deemed accepted.
3.4. Authorized Users. Only the Authorized Users may access and use the SmartWiz Platform and the TaxWise Software on behalf of Licensee.
3.5. TaxWise Software. The TaxWise Software is licensed by Licensor from Universal Tax Systems, Inc. d/b/a CCH Small Firm Services, a Virginia corporation (“CCH”). Licensee’s use of the TaxWise Software is subject to the terms and conditions of that certain Reseller Agreement, along with additional ancillary agreements referenced therein, entered into between Licensor and CCH for the 2024 tax year (the “TaxWise Agreements”). Licensee may request copies of the TaxWise Agreements from Licensor at any time during the Term.
3.6. Open Source Licenses. The SmartWiz Platform includes Open Source Components licensed under various licenses (each, an “Open Source License”). Any use of the Open Source Components by Licensee is governed by and subject to the terms and conditions of the Open Source License.
3.7. Security Measures. The SmartWiz Platform and the TaxWise Software may contain technological measures designed to prevent their unauthorized or illegal use. Licensee acknowledges and agrees that:
3.8. Maintenance and Upgrades. During the Term, Licensor may perform maintenance on, make updates to, or make other changes to the SmartWiz Platform in its sole discretion. The license granted in Section 3.1 includes any such maintenance, updates, or changes performed or made by Licensor.
4.1. Personalization. The license granted in Section 3.1 includes the ability for Licensee to incorporate its name and logo on the SmartWiz Platform.
4.2. Licensor’s White Label Standards. Licensor shall have the power to require Licensee to change its branding of the SmartWiz Platform if, in Licensor’s sole and absolute discretion, Licensee’s branding of the SmartWiz Platform is unethical, inappropriate, deceptive, or otherwise contrary to Licensor’s standards in any way. If Licensor exercises its power to require Licensee to change its branding of the SmartWiz Platform, Licensee shall immediately comply with Licensor’s instructions and change its branding.
4.3. URL. The URL for the SmartWiz Platform and the TaxWise Software will appear with Licensee’s selected word as a subdomain unless Licensee requests a custom URL, in which case Licensee shall be responsible for ensuring that the URL does not violate any Intellectual Property Rights of any third party as well as securing the URL via a registrar service.
Except as this Agreement expressly permits, and subject to Section 3.5 with respect to the TaxWise Software and Section 3.6 with respect to Open Source Components, Licensee shall not, and shall not permit any other Person to:
5.1. copy the SmartWiz Platform or the TaxWise Software, in whole or in part;
5.2. modify, correct, adapt, translate, enhance, or otherwise prepare derivative works or improvements of the SmartWiz Platform or the TaxWise Software;
5.3. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the SmartWiz Platform or the TaxWise Software to any third party, except as permitted by the license granted in Section 3.1;
5.4. reverse engineer, disassemble, decompile, decode, or adapt the SmartWiz Platform or the TaxWise Software, or otherwise attempt to derive or gain access to the source code of the SmartWiz Platform or the TaxWise Software, in whole or in part;
5.5. bypass or breach any security device or protection used for or contained in the SmartWiz Platform, the TaxWise Software, or the Documentation;
5.6. use the SmartWiz Platform or the TaxWise Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any Person, or that violates any applicable Law;
5.7. use the SmartWiz Platform or the TaxWise Software for purposes of: (a) benchmarking or competitive analysis of the SmartWiz Platform or the TaxWise Software; (b) developing, using, or providing a software product or service that competes with the SmartWiz Platform or the TaxWise Software; or (c) any other purpose that is to Licensor’s detriment or commercial disadvantage;
5.8. use the SmartWiz Platform or the TaxWise Software in or in connection with the design, construction, maintenance, operation, or use of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the SmartWiz Platform or the TaxWise Software could lead to personal injury or severe physical or property damage; or
5.9. use (a) the SmartWiz Platform, the TaxWise Software, or the Documentation other than as permitted by the license granted in Section 3.1 or for any purpose or application not expressly permitted by this Agreement or (b) any Open Source Components in any manner or for any purpose or application not expressly permitted by the controlling Open Source License.
6.1. Licensor’s Offerings. In connection with the license granted herein, Licensor may provide to Licensee the services as described in Exhibit A (the “Services”).
6.2. Acknowledgements by Licensee. Licensee understands and acknowledges that (a) it is its own responsibility to stay updated on changes to tax Laws, (b) if there are any changes to tax Laws, Licensee must research such changes from IRS publications and other authoritative sources, and (c) Licensee shall not hold Licensor liable for any liabilities it may incur as a result of changes to tax Laws.
7.1. License Fees. Licensee shall pay Licensor the license fees set forth in Exhibit B (the “Fees”) in accordance with that exhibit and the terms of this Section 7.
7.2. Taxes. All Fees and other amounts payable by Licensee under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Licensee is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Licensee hereunder, other than any taxes imposed on Licensor’s income.
7.3. No Deductions or Setoffs. All amounts payable to Licensor under this Agreement shall be paid by Licensee to Licensor in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).
8.1. Audit Procedure. Licensor or its nominee (including its accountants and auditors) may, in Licensor’s sole discretion, inspect and audit Licensee’s use of the SmartWiz Platform and the TaxWise Software under this Agreement at any time during the Term and for seven (7) years following the termination or earlier expiration of this Agreement. Licensee shall make available all such books, records, equipment, information, and personnel, and provide all such cooperation and assistance, as may be requested by or on behalf of Licensor with respect to such audit.
8.2. Results of Audit. If the audit determines that Licensee’s use of the SmartWiz Platform or the TaxWise Software violates this Agreement or the TaxWise Agreements in any way, Licensor may terminate this Agreement immediately upon written notice to Licensee as provided in Section 16.2.
9.1. Protection of Confidential Information. Licensor may disclose or make available Confidential Information to the Licensee in connection with this Agreement. As a condition to being provided with any disclosure of or access to Confidential Information, Licensee shall:
9.2. Exclusions. Confidential Information does not include information that Licensee can demonstrate by written or other documentary records: (a) was rightfully known to Licensee without restriction on use or disclosure prior to such information being disclosed or made available to Licensee in connection with this Agreement; (b) was or becomes generally known by the public other than by Licensee’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by Licensee on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) Licensee can demonstrate by written or other documentary records was or is independently developed by Licensee without reference to or use of any Confidential Information.
9.3. Compelled Disclosures. If Licensee or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, Licensee will: (a) promptly, and prior to such disclosure, notify Licensor in writing of such requirement so that Licensor can seek a protective order or other remedy or waive its rights under Section 9.1; and (b) provide reasonable assistance to Licensor in opposing such disclosure or seeking a protective order or other limitations on disclosure. If Licensor waives compliance or, after providing the notice and assistance required under this Section 9.3, Licensee remains required by Law to disclose any Confidential Information, Licensee will disclose only that portion of the Confidential Information that, on the advice of Licensee’s legal counsel, Licensee is legally required to disclose and, on Licensor’s request, will use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
10.1. Intellectual Property Ownership. Licensee acknowledges and agrees that:
10.2. Licensee Cooperation and Notice of Infringement. Licensee shall:
10.3. No Implied Rights. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Licensee or any third party any Intellectual Property Rights or other right, title, or interest in or to any of the SmartWiz Platform, the TaxWise Software, the Documentation, or the Data.
11.1. Security. Licensee shall use all legal, organizational, physical, administrative, and technical measures and security procedures to safeguard and ensure the security of the Data and to protect the Data from unauthorized access, disclosure, duplication, use, modification, or loss. Licensee shall ensure that the Data shall only be used in accordance with all applicable Laws. For the avoidance of doubt, Licensee shall ensure that Licensee’s Clients execute all forms Licensor requires Licensee’s Clients to sign in order to utilize the SmartWiz Platform or the TaxWise Software.
11.2. Breach Notification. In the event that any Data in Licensee’s possession is (a) accessed in an unauthorized manner, (b) disclosed to, duplicated by, used by, or modified by any third party, or (c) lost, Licensee shall immediately provide written notice of such event to Licensor and cooperate with Licensor in remedying the event and complying with all data breach Laws.
12.1. Mutual Representations and Warranties. Each Party represents, warrants, and covenants to the other Party that:
12.2. Representations and Warranties Regarding the Services. Licensor represents, warrants, and covenants to Licensee that during the Term, Licensor will perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services.
12.3. LICENSOR’S DISCLAIMER OF WARRANTIES. EXCEPT AS PROVIDED IN SECTION 12.2, THE SMARTWIZ PLATFORM, THE DOCUMENTATION, THE SERVICES, AND OTHER PRODUCTS, INFORMATION, MATERIALS, AND SERVICES PROVIDED BY LICENSOR ARE PROVIDED “AS IS.” LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, LICENSOR MAKES NO WARRANTY OF ANY KIND THAT THE SMARTWIZ PLATFORM OR THE DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET LICENSEE’S OR OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEMS, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL OPEN SOURCE COMPONENTS, THE TAXWISE SOFTWARE, AND OTHER THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY OF THEM IS STRICTLY BETWEEN LICENSEE AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH OPEN SOURCE COMPONENTS AND THIRD-PARTY MATERIALS.
13.1. General Representations. Licensee represents, warrants, and covenants to Licensor that:
13.2. State-Specific Representations. Without limiting any representation, warranty, or covenant made by Licensee under Section 13.1, Licensee further represents, warrants, and covenants to Licensor as follows:
14.1. Licensee Indemnification. Licensee shall indemnify, defend, and hold harmless Licensor and its Affiliates, and each of its and their respective officers, directors, employees, agents, subcontractors, successors, and permitted assigns (each, a “Licensor Indemnitee”) from any and all Loses incurred by a Licensor Indemnitee resulting from any Action by Licensee, any of Licensee’s Clients, or a third party which directly or indirectly arise out of, result from, or relate to: (a) the operations of Licensee, any and all accounts payable of Licensee, and any and all taxes levied or incurred, whether payable to a federal, state, local or other governmental authority; (b) any breach by Licensee of any of its representations, warranties, or covenants contained in this Agreement; (c) all claims, actions or legal proceedings relating to the Agreement or Licensee’s use of the SmartWiz Platform, the TaxWise Software, the Documentation, or the results thereof, including proceedings related to collection and enforcement; (d) any Data provided by Licensee to Licensor or any harmful software transmitted by Licensee or on behalf of Licensee; (e) unauthorized access to Data or other confidential information attributable in any way to the acts or inaction or omissions of Licensee; or (f) bodily injury, death of any person, or damage to real or tangible personal property resulting from any act or omission Licensee or its Representatives. Notwithstanding anything herein to the contrary, the obligations set forth in this Section 14 shall survive the termination or expiration of this Agreement.
14.2. Indemnification Procedure. The Licensor Indemnitee shall promptly notify the Licensee in writing of any Action for which the Licensor Indemnitee believes it is entitled to be indemnified pursuant to Section 14.1. Licensee shall promptly assume control of the defense and investigation of such Action and shall employ counsel reasonably acceptable to the Licensor Indemnitee to handle and defend the same, at Licensee’s sole cost and expense. The Licensor Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. Licensee shall not settle any Action without the Licensor Indemnitee’s prior written consent. If Licensee fails or refuses to assume control of the defense of such Action, the Licensor Indemnitee shall have the right, but no obligation, to defend against such Action, including settling such Action after giving notice to Licensee, in each case in such manner and on such terms as the Licensor Indemnitee may deem appropriate. The Licensor Indemnitee’s failure to perform any obligations under this Section 14.2 will not relieve Licensee of its obligations under this Section 14, except to the extent that Licensee can demonstrate that it has been materially prejudiced as a result of such failure.
15.1. EXCLUSION OF DAMAGES. IN NO EVENT WILL LICENSOR, OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY (a) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS, (b) LOSS OF GOODWILL OR REPUTATION, (c) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY LICENSED SOFTWARE OR OPEN SOURCE COMPONENTS OR OTHER THIRD-PARTY MATERIALS, (d) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, (e) COST OF REPLACEMENT GOODS OR SERVICES, OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, IN EACH CASE REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
15.2. CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF LICENSOR AND ITS LICENSORS, SUPPLIERS, AND SERVICE PROVIDERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID TO LICENSOR UNDER THIS AGREEMENT DURING THE TERM AND PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
15.3. LIABILITY FOR TAX RETURNS. WHILE LICENSOR PROVIDES TOOLS AND SERVICES TO AID IN TAX RETURN PROCESSING, THE ULTIMATE RESPONSIBILITY FOR THE CONTENT OF TAX RETURNS AND ANY LIABILITIES ARISING FROM THEM RESTS WITH LICENSEE.
16.1. Term. The term of this Agreement commences as of the Effective Date and continues in effect until the Expiration Date unless terminated earlier pursuant to this Agreement (the “Term”).
16.2. Termination by Licensor. Licensor may terminate this Agreement at any time without notice to Licensee:
16.3. Termination by Licensee. Licensee may terminate this Agreement, effective on written notice to Licensor, if Licensor materially breaches this Agreement and such breach: (a) is incapable of cure; or (b) being capable of cure, remains uncured thirty days after Licensee provides Licensor with written notice of such breach.
16.4. Effect of Termination or Expiration. On the expiration or earlier termination of this Agreement:
16.5. Surviving Terms. The provisions set forth in the following sections, and any other right, obligation, or provision under this Agreement that, by its nature, should survive termination or expiration of this Agreement, shall survive any expiration or termination of this Agreement: this Section 16.5 and Sections 1, 5, 8, 9, 10, 11, 13, 14, 15, 17, and 18.
17.1. DURING THE TERM OF THIS AGREEMENT, LICENSEE SHALL NOT DIRECTLY OR INDIRECTLY OFFER, MARKET, OR PROMOTE ANY OTHER SERVICE, SOFTWARE, OR PRODUCT THAT IS COMPETITIVE WITH THE SMARTWIZ PLATFORM, THE TAXWISE SOFTWARE, OR ANY SERVICES OFFERED BY LICENSOR. This covenant applies to Licensee, its heirs, assigns, subsidiaries, owners, equity holders, and successors, as well as agents and representatives under the control or direction of Licensee.
17.2. Licensee agrees that it will not circumvent or take any steps to circumvent the obligations set forth in Section 17.1, including by creating directly or indirectly any other legal entities or sharing its customer list with any Person.
18.1. Further Assurances. At Licensor’s request, Licensee shall execute and deliver all such documents and instruments and take all such further actions as may be necessary to give full effect to this Agreement.
18.2. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
18.3. Notices. Any notice, request, consent, claim, demand, waiver, or other communication under this Agreement have legal effect only if in writing and addressed to a Party as follows (or to such other address or such other person that such addressee Party may designate from time to time in accordance with this Section 18.3):
Notices sent in accordance with this Section 18.3 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by email, (with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next day, if sent after the addressee's normal business hours; and (d) on the third day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
18.4. Interpretation. The Parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The exhibits referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
18.5. Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
18.6. Entire Agreement. Except for that certain Marketplace Xtra Program Contract (if applicable to and signed by Licensee) which shall remain in full force and effect, this Agreement constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement or the related exhibits, the following order of precedence governs: (a) first, this Agreement, excluding its exhibits; and (b) second, the exhibits to this Agreement as of the Effective Date.
18.7. Assignment. Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, through a merger, acquisition, sale, or other transaction, or otherwise, without Licensor's prior written consent. No assignment, delegation, or transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer by Licensee in violation of this Section 18.7 is null and void. Licensor may assign or otherwise transfer its rights, and delegate or otherwise transfer any of its obligations or performance under this Agreement, at any time without the written consent of Licensee. This Agreement is binding on and inures to the benefit of the Parties hereto and their respective successors and permitted assignments.
18.8. Export Regulation. The SmartWiz Platform and the TaxWise Software may be subject to US export control laws, including the US Export Control Reform Act and its associated regulations. Licensee shall not directly or indirectly, export, re-export, or release the SmartWiz Platform or the TaxWise Software to, or make the SmartWiz Platform or the TaxWise Software accessible from, any country, jurisdiction, or Person to which export, re-export, or release is prohibited by applicable Law.
18.9. Force Majeure. In no event will Licensor be liable or responsible to Licensee, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by any circumstances beyond Licensor’s reasonable control (a “Force Majeure Event”), including (a) acts of God; (b) flood, fire, earthquake, epidemic, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (h) shortage of adequate power or transportation facilities.
18.10. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
18.11. Amendment and Modification; Waiver. Licensor reserves the right to amend or modify this Agreement at any time in its sole discretion. Licensee shall not amend, modify, rescind, or terminate this Agreement without the written consent of Licensor. No waiver by any Party of any of the provisions hereof is effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
18.12. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. On such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
18.13. Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Alabama without giving effect to any choice of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Alabama.
18.14. Arbitration. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration located in Birmingham, Alabama, and administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
18.15. WAIVER OF JURY TRIAL. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
18.16. Equitable Relief. Licensee acknowledges and agrees that a breach or threatened breach by Licensee of any of its obligations under Sections 5, 9, 10, and 17 of this Agreement would cause Licensor irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, Licensor will be entitled to equitable relief, including in a restraining order, an injunction, specific performance, and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
18.17. Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by Licensee against Licensor arising out of or related to this Agreement, and if Licensor prevails in such action, suit, or other legal or administrative proceeding, Licensor is entitled to recover its actual attorneys’ fees and court costs from Licensee.
18.18. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.