LMS SERVICE AGREEMENT - TERMS AND CONDITIONS
1. LMS SERVICE AGREEMENT: This is a contract between you as an Electronic Returns Originator ("ERO") and LMS Services ("LMS") as service provider. LMS will provide ERO with tax-preparation software, electronic income tax filing, and various bank products as listed on page one of this contract. These services and products are referred to as “ deliverable s” throughout this contract. ERO agrees to pay LMS the prices shown for these deliverable s.
2. LICENSE: This contract allows ERO to install and use the LMS deliverable s for the specified term. All software, documentation, and the information it contains, remain the property of LMS.
3. TERM, CANCELLATION AND EXCLUSIVITY: The LMS deliverable s include proprietary information and ERO, agreeing it has received a valuable benefit, accepts this information.
(a) TERM: This contract begins on the date it is signed and ends on the tax filing deadline date of April 15, 2014. All customer, technical and call center support ends on April 15, 2014. But if the IRS extends the tax filing deadline (for example, April 17) then this contract ends on such deadline. No customer, technical or call center support is given after this contract ends.
(b) OPTIONAL TWO-YEAR TERM: If ERO chooses to sign a two-year contract, then this contract ends on April 15, 2015. But if the IRS extends the tax filing deadline (for example, April 17) then this contract ends on such deadline. No customer, technical or call center support is given after this contract ends.
(c) CANCELLATIONS: All cancellations must be in writing and any fees paid by ERO to LMS are non-refundable except as explained in Section 5 below.
(d) EXCLUSIVE AGREEMENT: As a condition of this license, ERO must use the LMS deliverable s exclusively for preparing and filling all of ERO’s customer’s income tax returns during the term of this contract.
(e) PROPRIETARY & CONFIDENTIAL INFORMATION: ERO may not reveal, copy, or distribute any part of the LMS software, documentation, or pricing literature to any other party. When this contract ends or terminates, ERO must immediately return any software, documentation, or pricing literature still in ERO’s possession to LMS, and must remove and erase all installed tax-preparation software from any computer system under ERO’s care, custody, and control.
4. ERO RESPONSIBILITIES: ERO agrees that it: (a) must comply with all federal, state, and local laws, rules, regulations and tariffs that apply to this contract; (b) may not use the LMS services or products in a fraudulent, unauthorized, illegal or improper manner; (c) must comply with IRS Publication 1345 in using its EFIN properly; (d) must comply with all IRS requirements including obtaining a PTIN number; and (e) must conform all of its computers and equipment to meet the minimum system requirements in order to use the LMS services and products. Note: Apple or MAC Computer operation systems are not supported by any of our LMS Tax software programs. If you do not meet the minimum requirements outlined on page 5 below, LMS will not provide support to ERO. LMS may provide technical support for non-supported hardware/software or for any other issues outside of supporting Tax software but any support is charged separately. Non-payment of these separate charges is considered a breach of this Contract. LMS is not liable for any issues caused by wireless networks or by ERO’s non-conforming computers and equipment.
5. PAYMENTS & REFUNDS: LMS may immediately terminate this contract and withhold any payments due to ERO if ERO misuses its EFIN and violates 4(b) and 4(c) above. LMS may also withhold deliverable s to ERO at any time if ERO does not pay any outstanding balances it owes to LMS after LMS notifies ERO. If ERO’s computer data cannot be integrated into the software program (for example, corrupted data) LMS may allow a discretionary refund of up to 80% of the software purchase price for this reason only. All rebate or up charge reimbursements that are due to ERO from LMS are deposited directly on a re-loadable LMS MasterCard that LMS issues to each ERO.
6. CONTRACTUAL RELATIONSHIP: ERO is not an employee, representative, or subsidiary of LMS and may not represent itself as such to any third party.
7. INDEMNIFICATION: ERO agrees to indemnify LMS, its employees, agents, and assigns, from any liability arising out of ERO’s acts or omissions.
8. REMEDIES IN DEFAULT: ERO must pay LMS all legal expenses if LMS has to collect or enforce this contract through an attorney or through probate, bankruptcy, or judicial proceedings of any nature. This includes all reasonable attorney fees and court or arbitration costs, in addition to any other amounts due. In the event of default, all amounts due to LMS will accrue interest at the highest rate allowed by law.
9. ARBITRATION. All claims or disputes of any kind whatsoever arising out of, relating to or in connection with this contract, whether in contract, tort, statutory, or otherwise, including any questions about the scope of this arbitration agreement must be resolved through binding arbitration. This includes all claims or disputes by either party against any parties who are not signatories to this contract, whether related to this contract or otherwise. This includes past, present or future claims or disputes. The arbitration must take place before a single arbitrator selected under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitration must be held in Houston, Texas and each party must bear its own costs, fees, and expenses. No arbitration demand can be made if such claim or dispute would be barred by the applicable statute of limitation. The arbitrator is not authorized to award punitive or other damages not measured by the prevailing party’s actual damages. The arbitrator must provide a standard form of award and these awards are not appeal-able. Except as may be required by law, neither party nor arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties.
10. ENTIRE AGREEMENT: This contract, together with applicable Exhibits, contains the entire agreement between the parties with respect to its subject matter. It supersedes any prior written or oral agreements or communications between the Parties. It may not be modified except in a writing signed by both parties.
11. GOVERNING LAW: Texas law applies to this Contract without regard for any choice-of-law rules that might direct the application of the laws of any other jurisdiction.
12. NOTICES. All notices and other communications required under this Contract must be in writing and sent to the party at that party’s address set forth in this paragraph or at whatever other address the party specifies in writing. Notice must be sent by Certified Mail, return receipt requested. Notices to LMS are to be sent to: LMS Services, attention: General Counsel, 3800 Hopper Road, Houston, Texas 77093. Notices to ERO are to be sent to the address on page one of this contract. Notice is only effective if the requirements of this Section 12 are strictly fulfilled, and if the notice was actually received by the addressee. Notice is also effective when: (a) notice that meets the requirements of this section is rejected by the addressee, (b) an addressee refuses to accept such a notice, or (c) if notice is undeliverable because no change of address was given by addressee. Notice by Electronic mail, fax, or text messaging are not valid forms of notice and may not be used by ERO.
13. LIMITED WARRANTY AND LIABILITY: The LMS deliverables do not replace the opinions and advice of a tax professional regarding the preparation and filling of income tax returns. LMS does not WARRANTY the accuracy, sufficiency, or applicability of the information provided as part of the LMS deliverable s LMS SPECIFICALLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LMS will replace or repair any defective product at LMS’ option. LMS is not responsible for any consequential damages caused by its products or services. LMS makes no warranties as to the products or services of other entities which may be provided as a part of the LMS service. LMS DOES NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE SOFTWARE, ITS APPLICATION, OPERATION OR USE, DATA GENERATED BY ITS OPERATION OR USE, OR ANY SUPPORT SERVICES, INCLUDING BUT NOT LIMITED TO ANY BANKING SERVICES RENDERED TO ERO. LMS EXCLUDES ALL IMPLIED WARRANTIES ARISING BY STATUTE OR OTHERWISE, IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. LMS EXCLUDES ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR OF NON-INFRINGEMENT. BANK PRODUCTS ARE OFFERED SOLELY BY THE PARTICIPATING BANKING INSTITUTIONS AND LMS DOES NOT GUARANTEE BANK ENROLLMENT TO ERO. ERO WAIVES ALL CLAIMS AGAINST LMS AND LMS WILL HAVE NO LIABILITY FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, LOST PROFITS, LOST SAVINGS, LOSS OF GOODWILL, OR PUNITIVE DAMAGES ARISING OUT OF THIS CONTRACT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE AND WHETHER SUCH DAMAGES ARE FORESEEABLE AND REGARDLESS OF WHETHER ERO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, LMS’ TOTAL LIABILITY IS LIMITED TO THE PURCHASE PRICE.
14. FEES: ERO understands that all banks and software companies charge a technology fee and these fees are charged to ERO as explained on page 8 of this Contract. All fees are subject to change without notice.
15. BANK DEADLINES: ERO agrees to submit all bank applications in a timely manner according to the following deadlines and fees: (a) there is no fee if bank applications are submitted before December 1, 2013; (b) from December 1, 2013 to December 31, 2013 ERO will pay LMS a late non-refundable enrollment fee of two-hundred dollars ($200.00) and LMS is not responsible if any bank denies ERO’s application; (c) there will be no enrollment processing by LMS after December 31, 2013.
16. TRAINING: Check the appropriate box:
FIRST YEAR ERO. Your software fee includes two required training sessions: (a) Set up and configuration and (b) Basic Tax Training. For more information, please call (877)-465-7435.
ERO WITH MORE THAN ONE YEAR OF TAX PREPARATION EXPERIENCE. You will have access to training modules that are not required but are strongly recommended by LMS.
17. HEADINGS. Headings are for convenience only and do not affect the interpretation of this Contract.
18. “INCLUDING” AND “MAY NOT”. Unless the context requires otherwise the term “including” means “including but not limited to.” The term “may not” is prohibitive and not permissive.
19. NO ASSIGNMENT. ERO may not assign this Contract without LMS’ prior written consent.
20. MODIFICATION, WAIVER, AND SEVERABILITY. No modification of this contract is valid unless it is in writing and signed by both parties. If either party fails to require the other to perform any term of this contract, that failure does not prevent the party from later enforcing that term. If either party waives the other’s breach of a term, that waiver is not treated as waiving a later breach of the term. If any part of this contract is held to be unenforceable, the rest of it remains fully enforceable.
21. ERO EXPRESSLY WARRANTS AND REPRESENTS THAT, IN SIGNING THIS CONTRACT, NO PROMISES OR AGREEMENTS HAVE BEEN MADE TO IT THAT ARE OUTSIDE OF THIS CONTRACT. ERO IS NOT RELYING UPON ANY STATEMENT OR REPRESENTATION OF LMS. ERO IS RELYING ON ITS OWN JUDGMENT. ERO HAS BEEN REPRESENTED BY ITS OWN LEGAL COUNSEL IN THIS MATTER. AND ERO’S LEGAL COUNSEL HAS READ AND EXPLAINED TO IT THE ENTIRE CONTENTS OF THIS CONTRACT.
22. This contract automatically renews if ERO has chosen the optional two-year term under section 3(b) above.