UltimateTax Customer Agreement

As part of your purchase of tax preparation software and services through Ultimate Tax Service, Inc. ("UTS"), you must agree to the terms and conditions of this Agreement on behalf of your business. The business's full acceptance of this Agreement is required in order to be a customer of UTS in connection with its UltimateTax products and services. If you accept this Agreement, you are representing that you have the authority to accept it on behalf of the business entity with whom UTS has an account (the "Customer").

1. Tax Compliance Software

   1. 1.1. License. The UTS branded tax compliance software (the "Tax Compliance Software") that Customer may receive from UTS under this Agreement and pursuant to an order is licensed on a non-exclusive and non-transferrable basis in a quantity and of the type as specified on the order statement issued by UTS. UTS charges a licensing fee in order to provide access to the software it distributes (the "License Fee").
   2. 1.2. Electronic Filing Fees. Electronic filing fees may be charged to Customer in connection with all tax returns that are electronically filed through the Tax Compliance Software.
   3. 1.3. EULA. When installing the Tax Compliance Software, Customer will be required to agree to the end user license agreement (the "EULA"), which will provide the primary terms and conditions specific to the use of the software. Customer agrees to only use the Tax Compliance Software in full compliance with the terms of the applicable EULA, as further qualified by the terms of this Agreement and the UTS order statement.
   4. 1.4. Disclaimer. Customer acknowledges that UTS is a value-added reseller of the professional Tax Compliance Software, and as such, UTS itself makes no representations or warranties about the Tax Compliance Software and UTS waives and disclaims all liability as to the performance of the Tax Compliance Software. In order to fully support its business needs, it may be necessary for Customer to separately purchase additional third party applications that it chooses to use in connection with the Tax Compliance Software.

2. Support

   1. 2.1. Overview. A major benefit of being a UTS customer is the highly regarded technical support that we provide to our customers through the use of trained UTS personnel from our US offices during regular and seasonal working hours. While UTS will provide technical support for the Tax Compliance Software, it does not and will not provide professional tax, accounting or legal advice, such as advice regarding the appropriate handling of tax and accounting issues.
   2. 2.2. Restrictions. UTS may provide system requirement information upon request, but Customer is solely responsible for preparing its computer systems for the Tax Compliance Software. UTS will not provide technical support for systems that do not satisfy the published minimum requirements. UTS does not provide support for any software, hardware or services that are not purchased directly through UTS. UTS values our support personnel and does not tolerate verbal abuse or disrespect toward them; such behavior may result in the immediate termination of Customer's UTS support privileges. UTS further reserves the right to terminate its support services to Customer in the event that Customer makes excessive support requests at a volume that materially exceeds the average amount of service requests made by UTS customers as a whole; in lieu of support termination, a support fee may also be implemented upon mutual agreement with the Customer.

3. Refund Products:

   1. 3.1. Refund Product Providers. UTS works with certain third-party providers to allow for the offering of tax refund products such as refund transfers and refund advances (collectively referred to as "Refund Products") through the Tax Compliance So For the upcoming tax year, UTS will select authorized providers of Refund Products, which are currently EPS and TPG (the "Refund Product Providers"). However, the available Refund Product Providers are subject to change at any time in UTS's sole di In the event that UTS adds or removes a Refund Product Provider, UTS will notify our entire customer base of the change via email or other mass notice and provide our customers with enrollment instructions in the event that a different Refund Product Provider needs to be se While Refund Products are optional, if Customer wishes to offer Refund Products, it must enter into a binding agreement with the authorized Refund Product Provider of its choice (EPS or TPG). THE USE OF UNAUTHORIZED PROVIDERS OF REFUND PRODUCTS IS PROHIBITED. Each Refund Product Provider will have applicable policies and procedures that Customer will be required to follow.
   2. 3.2. Refund Product Fees. Customer acknowledges that certain fees will be charged to the taxpayer for the Refund Product products that Customer sells. Customer may also set its own fees during Customer's enrollment with its selected Refund Product Provider. Any fees set by Customer will be sent by the Refund Product Provider to UTS, and UTS will first apply any fees received toward Customer's electronic filing fees and/or the license fee for next year's tax compliance software. Any balance after all obligations to UTS have been satisfied will be paid to Customer by June 30th following the tax season. Customer may request payment of its balance prior to June 30th, but in such cases UTS will charge an early payment processing fee of $100.00 (although this fee will be waived if Customer renews its license for the Tax Compliance Software prior to or at the time of the request).
   3. 3.3. Compliance. Customer is responsible for obtaining the taxpayer's written consent, as required under IRS Code Section 7216, prior to using and/or disclosing the taxpayer's personal information for purposes of issuing Refund Products, if and as required by the Tax Compliance Software or Refund Product Provider. Customer must provide each taxpayer that obtains a Refund Product with the Refund Product price statement as generated through the Tax Compliance So If Customer creates or uses any advertising for Refund Products, Customer must ensure that such marketing materials comply with all applicable federal and state laws and regulations. UTS does not provide legal advice concerning Refund Product products or marketing.
   4. 3.4. Ultimate Cash. Ultimate Cash is a rewards program available only to Customers who offer Refund Products. Ultimate Cash is based on the number of returns that are charged a Service Bureau Fee in connection with the Refund Product. Customer should be able to show past proof of being able to sell a minimum of one hundred (100) Refund Product in order to enroll in the rewards program. Ultimate Cash rewards apply to Refund Products funded from January 1st through April 30th of the current filing year. The Ultimate Cash rewards will be first applied towards the purchase of the following year's Tax Compliance Software, as applicable, and the remaining balance will be disbursed to Customer no later than June 30th of the current filing year. IF CUSTOMER IS NOT OFFERING REFUND PRODUCTS, THIS SECTION 3.4 WILL NOT APPLY.
   5. 3.5. Disclaimer. UTS may have separate agreements with the Refund Product Providers that result in UTS receiving certain rebates and incentives in connection with the activity of all of UTS's customers, including Customer. Any such amounts shall be retained by UTS.

4. Third Party Products.

   1. 4.1. Protection Plus. UltimateTax serves as a third party distributor of certain products and services provided by third parties ("Third Party Service Providers"), including, but not limited to, Protection Plus audit assistance products from Tax Protection Plus, LLC ("TPP"). UltimateTax may discontinue a Third Party Service Provider offering in its sole discretion at any time upon notice to Customer or otherwise terminate Customer's ability to offer these products and services upon request by the Third Party Service Provider. Customer will hold UltimateTax harmless for any damages, losses or harm arising out of the sale and purchase of these products and services, but may seek remedy for any such harm from the Third Party Service Provider. Customer may be required to enter into separate written agreements with the Third Party Service Provider prior to being able to offer the applicable product or service.
   2. 4.2. Fees. In the event a fee for a third party product is collected directly by the Customer, Customer authorizes UltimateTax to collect the fee on behalf of the applicable Third Party Service Provider by using any existing credits Customer may have on account with Ul Except as expressly stated in this Agreement, UltimateTax does not provide any rebates or other payments for or on behalf of a Third Party Service Provider.

5. Representations

   1. 5.1. UTS. UTS represents that:
      1. 5.1.1. it has all legal rights and authority to enter into this Agreement, and by entering into this Agreement UTS will not be violating any third party agreements that would otherwise prohibit it from fulfilling its obligations hereunder;
      2. 5.1.2. it has the right to grant to Customer the rights in the software, products and services that UTS will provide to Customer pursuant to this Agreement and the applicable order form(s);
      3. 5.1.3. it has not inserted into the Tax Compliance Software any virus or similar code to erase data;
      4. 5.1.4. it will use commercially reasonable efforts to provide its services in a professional manner in compliance with all applicable laws; and
      5. 5.1.5. it will comply with all laws, regulations, policies and procedures applicable to the operation of its business.
   2. 1. 5.2. Customer. UTS depends on its customers to honor the commitments required under this Agreement and to operate in a professional manner. In furtherance of this expectation, Customer makes the following representations and covenants:
         1. 5.2.1. Software and Refund Product Exclusivity. During the Term for the upcoming filing season, Customer represents, warrants and covenants that it will only use the Tax Compliance Software provided by UTS for any and all tax returns prepared and transmitted by Customer, and Customer will only process and transmit Refund Products through a Refund Product Provider who is approved by UTS in writing. Customer will not take any action to circumvent this exclusivity. In the event that UTS discovers Customer is using an unauthorized Refund Product Provider and/or tax compliance software not obtained through UTS, Customer agrees that UTS may charge, or otherwise obtain from, Customer a fee of $30 per tax return that was filed in connection with such unauthorized product. Customer agrees that this fee represents a fair and reasonable approximation of the harm that would result from Customer's breach of its exclusivity obligations hereunder.
         2. 5.2.2. Engagement. Customer has all legal rights and authority to enter into this Agreement, and by entering into this Agreement Customer will not be violating any third party agreements that would otherwise prohibit it from fulfilling its obligations hereunder. Customer will provide only accurate, current and complete information on any forms, applications or other questionnaires provided by UTS, a Refund Product Provider or Third Party Service Provider, and shall keep all contact information current by updating UTS of any changes. Customer is entering into this Agreement for the sole purpose of offering commercial tax compliance services to its taxpayer clients and will not use its relationship with UTS for a surreptitious purpose of obtaining information from or about UTS, its third party partners and/or their products and services.
         3. 5.2.3. License Use. Customer will not use, or permit others to use, any software, products or services offered by UTS in a manner or to an extent that exceeds Customer's authorized use as specified in the order form(s) entered into by Customer. Customer will not modify, create derivative works from, or sublicense any software or products provided to it by UTS, nor reverse engineer, decompile, disassemble, or otherwise attempt to derive any source code from such software.
         4. 5.2.4. Compliance. Customer will comply with all applicable policies, procedures and agreements, including Refund Product Provider guidelines and any software EULA or product agreement. Customer will comply with all laws, regulations, policies and procedures of any government agency. Customer is not, nor has ever been, subject to federal, state or regulatory enforcement proceedings relating to tax compliance and/or Refund Product products. Customer and Customer's EFIN are currently in good standing with the IRS. Customer will not use any software, products or services provided by UTS or its third party partners in any manner that could be deemed unlawful or potentially harmful. Customer will not misrepresent to its clients the nature of any products or services offered in connection with this Agreement.
         5. 5.2.5. Data Security. Customer has implemented and will maintain reasonable security measures to ensure the protection of all taxpayer information, and Customer will immediately notify UTS if Customer reasonably believes that a breach of data has occurred.
         6. 5.2.6. Non-Compete. During the Term and for a period of two (2) years thereafter, Customer shall not engage in, act as, open, work for, undertake planning, conspire with others to create, or own shares in, any electronic filing service bureau which directly competes with UTS or its successors. Customer also agrees not to employ any of UTS's (or its successors) employee(s) during the Term or for a period of two (2) years after the termination of this Agreement.

6. Payment

   6.1. Pricing and Payments. All products and services are sold by UTS at the then-current price established at the time of purchase. Customer will pay UTS in accordance with the sales order form. Unless the parties agree otherwise in a sales order form, UTS reserves the right to revise any of the fees it charges in connection with tax returns and Refund Products upon notice to Customer at any time during the Term prior to January 15 All payments must be made with one of the following methods of payment:

   • A valid credit card;
   • A valid debit card;
   • The Ultimate Cash Program provided by UTS (for the Tax Compliance Software only); or
   • Fees otherwise accrued in connection with the sale of Refund Products.

   IN ADDITION TO THE FOREGOING, CUSTOMER MUST COMPLETE ENROLLMENT IN THE UTS PORTAL AND PROVIDE AUTHORIZED PAYMENT INFORMATION PRIOR TO THE TRANSMISSION OF ANY RETURNS THROUGH THE TAX COMPLIANCE SOFTWARE. FAILURE TO PROVIDE VALID PAYMENT INFORMATION IN THE PORTAL AT ANY TIME WILL RESULT IN IMMEDIATE SUSPENSION OF ALL TRANSMISSION AND SUPPORT SERVICES. CUSTOMER GRANTS UTS THE RIGHT TO USE THE PAYMENT INFORMATION PROVIDED BY CUSTOMER TO COLLECT ALL FEES AND PAYMENTS THAT ARE DUE (INCLUDING, BUT NOT LIMITED TO, CHARGES AND FEES RELATED TO ELECTRONIC FILING FEES, TAX COMPLIANCE SOFTWARE AND REFUND PRODUCT PROVIDERS).

   1. 6.2. Late Payments. A late payment charge of the lesser of 1½% per month or the highest rate allowed by applicable law may be applied to any outstanding balances until paid. Failed payments (e.g., insufficient funds, incorrect account numbers, etc.) are subject to a service fee of a minimum of $20 or the maximum amount permitted by law. UTS shall also have the right to restrict Customer's account from access to the electronic filing center in the event that any payment becomes overdue.
   2. 6.3. Electronic Filing Fees. Electronic filing fees, as specified in the sales order form and payable under this Agreement, will be invoiced on a weekly basis for the months of February, March and April and on a monthly basis for all other months.
   3. 6.4. Sales and Use Tax. Customer will pay any applicable taxes relating to this Agreement, other than taxes based on UTS's income and any franchise-related taxes. UTS Recommends that Customer calculate and apply any applicable use tax to their purchase, which tax is payable at the end of the year on the year end Income Tax Return.

7. Disclaimers

   1. 7.1. ALL SOFTWARE, PRODUCTS, SERVICES AND SUPPORT ARE PROVIDED ON AN "AS IS," "AS AVAILABLE" BA UTS DISCLAIMS ALL LIABILITY FOR ANY THIRD PARTY SERVICE PROVIDER PRODUCTS INCLUDING, BUT NOT LIMITED TO, THE TAX COMPLIANCE SOFTWARE, THE REFUND PRODUCTS AND ANY THIRD PARTY SERVICE PROVIDER PRODUCTS. OTHER THAN AS EXPLICITLY STATED IN THIS AGREEMENT, UTS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, COMPLETENESS, CURRENTNESS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. UTS DOES NOT WARRANT THAT THE SOFTWARE, PRODUCTS, SERVICES AND SUPPORT WILL BE UNINTERRUPTED OR ERROR-FREE AND DISCLAIMS ANY WARRANTY OR REPRESENTATION REGARDING AVAILABILITY OF A SERVICE, SERVICE LEVELS OR PERFORMANCE.
   2. 7.2. Data Breach. UTS is not responsible for any loss caused due to any data breach or hacking of its servers. Customer agrees to hold harmless UTS for any claims arising as a result of an interception of Customer's data by a third party while the data is being sent over interconnected local and wide-area networks.
   3. 7.3. Preparation of Returns. Regardless of the services and support provided by UTS, Customer will remain solely responsible for the proper preparation, accuracy (including computational accuracy), and review of all tax returns created by Customer while using the software provided by UTS.
   4. 7.4. Product Selection. Customer is solely responsible for the selection of the appropriate software, products and services to satisfy Customer's business needs, as well as for selecting, obtaining and maintaining all hardware, software, computer capacity, Internet service, program and system resources and other equipment and utilities needed to use the software, products and services provided by UTS.
   5. 7.5. Functionality. UTS or its third-party partners may add additional functionality as enhancements to its software, products and/or services at no additional fee, or as one or more separate products or services for an additional fee. UTS reserves the right to discontinue products or services that in UTS's judgment are no longer economically feasible or have become technologically out of date.

8. Protection of Proprietary Rights and Confidential Information

   1. 8.1. Proprietary Rights. All products, software, services and support are proprietary to UTS or the Refund Product Providers, as applicable, and may include copyrighted works, trade secrets, or other materials created at great effort and expense. Customer will not in any way contest the validity of the rights in or ownership of any of its products and services or documentation provided under this Agreement. Customer will reproduce UTS's copyright and proprietary rights legend on all copies of materials that Customer is permitted to reproduce or distribute. Except as stated in Section 4.4, neither party will use the trade names, trademarks or service marks of the other party in any news release, publicity, advertising, or endorsement without the prior written approval of the other party. Customer shall not disclose the negotiated pricing or terms of this Agreement, or of any sales order form, to any third party.
   2. 8.2. Confidential Information. Each party ("Recipient") will treat all information provided by the other party ("Discloser") that Discloser designates in writing to be confidential in the same manner as Recipient treats its own confidential information; provided that i) Recipient may share such information with its employees and third party service providers, with a need to know and/or in order to fulfill the obligations pursuant to this Agreement ("Representatives"), in furtherance of the provision of the products and services hereunder, that are subject to confidentiality obligations substantially as restrictive as those set forth in this Section and ii) Recipient assumes responsibility for such employee's and third party service provider's use of such information. Discloser represents and warrants that it has all necessary legal rights, title, consents and authority to disclose such confidential information to Recipient. Notwithstanding such confidential status, Customer agrees that UTS may, without identifying Customer as the source of such information, use information provided by Customer to create, update, merge, analyze, maintain or enhance its database of information, as permitted by law. UTS will not transfer, disclose, sell or otherwise distribute such information in the form supplied by Customer to any third party (other than Representatives) without Customer's consent, unless UTS is required by law to do so. Confidential information shall not include information that (i) is or becomes a part of the public domain through no act or omission of Recipient; (ii) was in Recipient's lawful possession prior to Discloser's disclosure to Recipient; (iii) is lawfully disclosed to Recipient by a third-party with the right to disclose such information and without restriction on such disclosure; or (iv) is independently developed by Recipient without use of or reference to the confidential information.

9. Term and Termination

   1. 9.1. Term. The Term of this Agreement shall run from the date of Customer's acceptance of this Agreement until the October 31^st following the end of the applicable tax season (the "Term"). This Agreement shall automatically renew 12 months following the previous date of purchase or renewal. If Customer desires not to renew, Customer must notify UTS by a phone conversation at least 10 days prior to the automatic renewal date.
   2. 9.2. Cancellation and Refund Policy. CUSTOMER UNDERSTANDS AND AGREES THAT UTS SHALL HAVE INCURRED EXPENSES IN ANTICIPATION OF ITS PERFORMANCE UNDER ITS AGREEMENT WITH CUSTOMER AND THAT ALL PURCHASES OF THE TAX COMPLIANCE SOFTWARE ARE SUBJECT TO THE UTS REFUND POLICY (AVAILABLE HE MOREOVER, THE ORDER RECEIPT ISSUED BY UTS, ALONG WITH THIS AGREEMENT, IS A BINDING CONTRACT AND COMMITMENT BY CUSTOMER TO PAY THE AMOUNT LISTED ON THE ORDER RECEIPT.
   3. 9.3. Termination.
      1. 9.3.1. In the event of material breach of Sections 5.2.1 through 5.2.6, UTS may immediately terminate this Agreement or, in its sole discretion, UTS may suspend Customer's use of any and all software, products and/or services and notify Customer. While UTS will make good faith efforts to reactivate access to services upon Customer remedying any suspension, UTS makes no guarantees regarding the timing of reactivation. Customer shall be required to cure any such breach within three (3) business da If Customer fails to regain compliance within such time, UTS may, in its sole discretion, terminate this Agreement for cause, in addition to any other rights or remedies UTS may have. In the event of material breach of any other part of this Agreement by Customer or UTS, the non-breaching party may terminate this Agreement if such breach is not cured within thirty (30) days of written notice of breach.
      2. 9.3.2. Except as prohibited by law, UTS reserves the right to refuse or discontinue software, products and services to any Customer without cause and provide a full refund of any amounts paid by Customer minus the value of any software, products and services utilized. Customer acknowledges that UTS must have this right in order to preserve the integrity of UTS's reputation within the industry and fulfill any requirements to prevent and/or prohibit fraud. This section does not limit UTS's right to discontinue software, products and services without refund granted in other sections of this Agreement.
      3. 9.3.3. If, in the sole judgment of UTS, a change in the competitive, legislative, or regulatory environment makes a current offering of UTS no longer commercially feasible, profitable or practical, UTS reserves the right to terminate this Agreement.
      4. 9.3.4. Customer agrees to hold harmless UTS for any claim that may arise out of UTS's termination of a Customer's software, products and/or services as permitted under this Agreement.
   4. 9.4. Effect of Termination. Termination of this Agreement for any reason will result in a termination/suspension of all licenses, services and outstanding orders. Customer can ensure continuation in services by renewing the Tax Compliance Software prior to the expiration of the Te If, without UTS's written permission or as permitted hereunder, Customer continues to use the Tax Compliance Software after the applicable license has terminated, in addition to any other remedies available to UTS for such breach of the Agreement, Customer will be liable to UTS for the undiscounted fees (including annual fees for the Tax Compliance Software generally licensed on an annual basis) for such software in effect on the date of such termination or expiration.
   5. 9.5. Survival. The provisions set forth in Sections 1.4, 4.2, 4.4, 4.9, 4.10, 5.2.6, 7.1, 7.2, 8.1, 8.2, 9.3, 9.4, 9.5, 9.6, 10, 11 and 12 will survive the termination of this Agreement.

10. Limitation of Liability; Indemnification

    1. 10.1. UTS SHALL NOT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING LOST PROFITS, LOST DATA, LOST REVENUES, AND LOSS OF BUSINESS OPPORTUNITY, WHETHER OR NOT SUCH PARTY WAS AWARE OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF THESE DAMAGES.
    2. 10.2. UTS'S MAXIMUM LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY OR OTHERWISE), WILL NOT EXCEED THE TOTAL AMOUNT PAID AND PAYABLE BY CUSTOMER HEREUNDER DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH LOSS, DAMAGE, INJURY, CLAIM, COST OR EXPENSE OCCURRED.
    3. 10.3. Notwithstanding anything to the contrary, the exclusions and limitations set forth in Section 10.1 and Section 10.2 above shall not apply with respect to UTS's obligations under Section 10.4.
    4. 10.4. General Indemnification. During the Term and for two years thereafter, each Party (the "Indemnifying Party") will defend, indemnify and hold harmless the other Party, its officers, directors, employees, successors and assigns (collectively, the "Indemnified Parties"), in respect of any losses, damages, liabilities and expenses (including reasonable attorneys' fees) (collectively, "Damages") incurred or suffered by any of the Indemnified Parties with respect to claims instituted by any third party, including a federal or state government or agency (a "Third Party Claim") resulting from (a) any fraud or material misrepresentation of the Indemnifying Party, or (b) any material breach by the Indemnifying Party of any of its obligations, representations, covenants or other commitments pursuant to this Agreement. In connection with any Third Party Claim, the Indemnifying Party may defend the Indemnified Party against the Third Party Claim with counsel reasonably satisfactory to the Indemnified Party so long as (i) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations hereunder, (ii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief, (iii) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedent adverse to the continuing business interests or the reputation of the Indemnified Party, (iv) no conflict of interest exists between the Indemnifying Party and the Indemnified Party, and (v) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently. In the event any of the conditions above is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the Third Party Claim in any manner it reasonably may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, the Indemnifying Party in connection therewith), (B) the Indemnifying Party will reimburse the Indemnified Party for the costs of defending against the Third Party Claim (including reasonable attorneys' fees and expenses), and (C) the Indemnifying Party will remain responsible for any Damages the Indemnified Party may suffer resulting from the Third Party Claim, to the fullest extent provided in this section. In any event, the Indemnified Party may retain separate co-counsel at its cost and participate in the defense of the Third Party Claim and the Indemnifying Party will not consent to the entry of any judgment or enter into any settlement with respect to any Third Party Claim without the prior written consent of the Indemnified Party, which shall not be unreasonably withheld or delayed. This foregoing indemnification provision shall constitute the Indemnified Parties' sole and exclusive remedy, and the Indemnifying Party's sole and exclusive liability, for monetary damages in respect of the matters indemnified under this section.

11. Choice of Law; Disputes; Remedies

    1. 11.1. This Agreement is governed by and construed in accordance with the laws of the State of New York, without regard to choice of law provisions. All disputes arising out of or relating to this Agreement shall be instituted and prosecuted exclusively in a state or federal court located in Cedar Rapids, Iowa, with both parties specifically consenting to extraterritorial service of process for that purpose.
    2. 11.2. Customer will pay all costs and expenses, including reasonable attorneys' fees, that UTS incurs in any action to enforce Customer's obligations, including payment obligations, under this Agreement.
    3. 11.3. Customer agrees that, in the event Customer breaches or threatens to breach any of Sections 5.2.1, 5.2.3, 5.2.6, or 8 of this Agreement, the damage or imminent damage to UTS, its business and goodwill will be irreparable and extremely difficult to estimate, making any remedy at law or in damages inadequate. It is accordingly agreed that UTS, in addition to any other remedy to which it may be entitled in law or equity, will be entitled to an injunction or injunctions to prevent breaches of the above referenced sections of this Agreement and to compel specific performance of this Agreement in accordance with its terms and conditions, without the need for proof of actual damages or the posting of a bond.
    4. 11.4. In addition to all other available remedies under this Agreement and applicable law, Customer agrees to pay UTS for breaches of Section 5.2.1 a sum equivalent to the fees that UTS would have been paid for the applicable tax returns and/or Refund Products that were processed by or through Customer in breach of this Agreement.
    5. 11.5. UTS may refuse to renew Customer's account for the following tax season in the event that Customer materially breaches any obligation, representation or covenant provided herein.

12. Miscellaneous

    1. 12.1. Entire Agreement. This Agreement, any orders, addenda, and schedules constitute the entire agreement between UTS and Customer regarding the matters herein. All prior agreements, both oral and written, between the parties on the matters contained in this Agreement are expressly cancelled and superseded by this Agreement. Any order initiated as of the effective date of this Agreement, regardless of such order's effective date, and notwithstanding anything to the contrary contained therein, shall be subject to this Agreement. In no event shall any terms or conditions included by Customer on any form or purchase order apply to the relationship between UTS and Customer hereunder, unless such terms are expressly agreed to by both parties in writing. Any amendments of or waivers relating to this Agreement or any order must be in writing signed by the party, or parties, to be charged therewith.
    2. 12.2. Independent Contractors. Customer is an independent contractor, and while UTS considers our Customers to be like partners in the business sense, no legal partnership, agency or joint venture is created by this Agreement, and Customer will not represent itself as an agent or affiliate of UTS or attempt to contractually bind UTS. CUSTOMER IS AN INDEPENDENT CONTRACTOR AND AS SUCH IS NOT ENTITLED TO WORKER'S COMPENSATION BENEFITS. CUSTOMER IS OBLIGATED TO PAY FEDERAL AND STATE INCOME TAX ON ANY MONIES EARNED PURSUANT TO THIS AGREEMENT.
    3. 12.3. Affiliates. This Agreement will inure to the benefit of the parties, as well as their affiliates, subsidiaries, and respective successors and assigns. All obligations of "Customer" shall include its parent companies, sister companies, and any respective subsidiaries, affiliates, directors, officers, employees, contractors, and agents, as well as the Customer Affiliates, to the extent such entities are using the software, products or support provided hereunder, and Customer is fully responsible for such entities' compliance with all terms and conditions contained within this Agreement as applicable to such person's activities and uses. This Agreement is not intended to, nor may be deemed to create any rights of enforcement in any person who is not a signatory to this Agreement.
    4. 12.4. Assignment. This Agreement binds and inures to the benefit of the parties and their successors and permitted assigns, except that neither party may assign this Agreement without the prior written consent of the other party; however, UTS may assign the Agreement to any of its affiliated companies or in connection with a merger or consolidation involving UTS (so long as the assignment is to the newly merged or consolidated entity) or the sale of substantially all of UTS's assets (so long as the assignment is to the acquirer of such assets).
    5. 12.5. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be illegal or unenforceable, the provision will be reformed and construed to be a valid, operative and enforceable provision while preserving its original intent. All of the terms in this Agreement are severable, and the invalidity of any part of this document does not render invalid the remainder.
    6. 12.6. Force Majeure. UTS shall not 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 its reasonable control including failures or delays caused by the act or omission of any governmental authority, fire, flood, failures of third party suppliers, acts or omissions of carriers, transmitters, providers of telecommunications or Internet services, vandals, hackers or other event beyond its reasonable control.
    7. 12.7. No Construction against Drafter. Each of the parties hereto acknowledges that it has had the opportunity to be represented by independent counsel of its choice prior to entering into this Agreement. In construing this Agreement, no provision hereof shall be construed in favor of one party on the ground that such provision was drafted by the other.
    8. 12.8. Counterparts. This Agreement may be executed electronically (including by means of facsimile or click-through) and in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
    9. 12.9. Notices. Notices to Customer will be in writing and delivered to the most recent mailing address provided to UTS by Customer. If an urgent matter arises, UTS retains the right to use the primary email address provided by Customer. All notices to UTS must be in writing and delivered to UltimateTax Service, Inc., ATTN: Mike Steele, 1500 Plaza Place, Suite 201, Muscatine, IA 52761. All notices should be sent by trackable means and will be considered made on the date of delivery. Each party is responsible for giving the other party notice of a change of mailing or email address.