Terms & Conditions
The following Standard Terms and Conditions (the “Terms”) govern the tax reporting services to be rendered by ZAMP (“Zamp” or “Company”) for the benefit of its customers pursuant to the Order Form executed by Zamp and such customer (the “Order Form”), and are deemed to be a part of the Order Form. The Order From together with the Terms are collectively referred to herein as the “Agreement.” For purposes of this Agreement, “Customer” shall mean Zamp’s customer identified in the Order Form, and Customer and Zamp are each referred to as a “Party” and collectively as the “Parties.”
1. Services
Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services set forth on the Order Form. The terms of this Agreement shall also apply to updates, and upgrades subsequently provided by Zamp to Customer. Zamp may update the features, functionality, and other aspects of the Service, including any related documentation, from time to time in its sole discretion, as part of its ongoing efforts to improve the Service. The updates and upgrades described herein may not materially degrade the functionality of the Service. As part of the registration process, Customer will identify an administrative username and password for Customer’s Company account. Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate.1.2 Modifications; Discontinuation of Service
Zamp may make modifications to the Service or individual features and functionality of the Service from time to time and will use commercially reasonable efforts to notify Customer of any material modifications. Zamp further reserves the right to discontinue offering the Service, in whole or in part, at any time. Customer agrees that Zamp shall not be liable to Customer or any third party for any such modification or discontinuation of the Service. In the event of a modification or discontinuation that has a material, adverse impact on Customer’s ability to use the Service, Customer shall be entitled, as its sole and exclusive remedy, to terminate its subscription(s) to the affected Service, and receive a prorated refund of the subscription fees pre-paid by Customer for the affected Service for the remaining portion of the Term.1.3 Support
Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with the Company’s Support Level Agreement.2. CUSTOMER RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); attempt to access any other Company systems, programs or data that are not made available for public use; use the Service in any unlawful manner (including without limitation in violation of any data, privacy or export control laws); perform or attempt to perform any actions that would interfere with the proper working of the Services, prevent access to or the use of the Services by Company’s other licensees or customers, or impose an unreasonable or disproportionately large load on Company’s infrastructure; sublicense, resell, rent, lease, transfer, assign, timeshare or otherwise commercially exploit or make the Service available to any third party; or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Company hereby grants Customer a non-exclusive, non-transferable, non sublicensable license to use such Software during the Term only in connection with the Services and subject to any other applicable restrictions described herein or in the Service.
2.2 To the extent the Customer’s ordered Services include access to the Zamp API to access and receive sales tax-related information made available by Zamp through the API (“Content”), the following terms apply: Zamp expressly reserves the right to limit frequency and/or, up to the limit stated in the Order Form, the number of API requests, in each case, at its sole discretion. Except as expressly authorized under this Agreement or by Zamp, Customer may not (A) copy, rent, lease, sell , transfer, assign,sublicense, dissemble, reverse engineer or decompile (except to the limited extent expressly authorized under applicable statutory law), modify or alter any part of the API or Content; use the API on behalf of any third party; attempt or provide a means to execute any "bulk download" operations, including without limitation by “crawling” the API or Content; cache or otherwise store any Content and/or modify any Content; (B) use the API or any Content in connection with or to promote any products, services or materials that constitute, promote or are used primarily for the purpose of dealing in: spyware, adware, spam, pornography or other offensive purposes; (C) use the API or any Content in any manner or for any purpose that violates any applicable law or regulation, or any right of any person including, but not limited to, intellectual property rights, rights of privacy and/or rights of personality; (D) use the API in a manner that adversely impacts the stability of the API; (E) use the API to send fraudulent requests; or (F) use the API to create a product or service that is competitive with any Zamp Service.
2.3 Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury
Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
2.4 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with all applicable laws and regulations.
2.5 Customer Credentials; Third-Party Rights
By submitting passwords, usernames, PINs, and other log-in information, materials and content (“Credentials”) to Company through the Services, Customer expressly authorizes Company to use such Credentials to access and use Customer account information maintained by identified third-parties (“Account Information”), on Customer’s behalf as Customer’s agent. Company may use and store Customer’s Credentials and Account Information in accordance with this Agreement and our Privacy Policy. Customer represents that Customer is entitled to submit its Credentials to Company for use for this purpose, without any obligation by Company to pay any fees or be subject to any restrictions or limitations. Customer hereby authorizes and permits Company to use and store Customer Credentials to accomplish the foregoing and to configure the Services that it is compatible with the third-party sites for which Customer submits its Credentials. For purposes of this Agreement and solely to access and use Customer Account Information as part of the Services, Customer grants Company a limited power of attorney, and appoints Company as Customer’s attorney-in-fact and agent, to access such third-party sites, and retrieve and use Customer’s Account information with the full power and authority to do and perform each thing necessary in connection with such activities, as Customer could do itself. CUSTOMER ACKNOWLEDGES AND AGREES THAT WHEN COMPANY IS ACCESSING AND RETRIEVING ACCOUNT INFORMATION FROM THIRD-PARTY SITES, COMPANY IS ACTING AS CUSTOMER’S AGENT, AND NOT AS THE AGENT OF OR ON BEHALF OF THE THIRD-PARTY THAT OPERATES THE THIRD-PARTY SITE.
2.6 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third-party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.2 Customer shall own all right, title and interest in and to the Customer Data and has obtained any necessary consents to submit such Customer Data for use within the Services. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Services or support, and (c) all intellectual property rights related to any of the foregoing.
3.3 Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other
information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein. To the extent Customer Data contains Personal Information (as defined in the Data Processing Agreement), the Company’s Data Processing Agreement will apply to Company’s processing of such Personal Information.
4. CUSTOMER CREDENTIALS; THIRD-PARTY RIGHTS
4.1 In connection with the promotion or Customer’s use of the Services, the Services may enable linking with, or otherwise make Customer aware of various third-party services, products, websites, or other resources (“Third-Party Services”). These Third-Party Services may include address validation, among others. If Customer decides to use Third-Party Services, Customer is responsible for reviewing and understanding the terms and policies governing any Third-Party Services. To take advantage of features and capabilities related to linked Third-Party Services, we may ask Customer to authenticate, register for or log into Third-Party Services through the Service or on the websites of their respective providers. The manner in which Third-Party Services use, store and disclose Customer’s information is governed solely by the policies of such third-parties. Company does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Services, and the inclusion of any link to Third-Party Services in the Services is not and does not imply an affiliation, sponsorship, endorsement, approval, investigation, verification or monitoring by Company or its Suppliers (defined below) of the Third-Party Services. Customer agrees that neither Company nor its Suppliers are responsible for the performance, provisions, terms, and policies of the Third-Party Services, and use of the Third-Party Services is at Customer’s own risk.
4.2 In connection with the Services, Customer consents to allow Company’s transmitter or electronic return originator to send the applicable tax return forms to the proper state agency and to receive associated information from the proper state agency.
5. ELECTRONIC FILING & REGISTRATIONS SERVICES
By using the Service to prepare and submit Customer’s tax return, Customer consents to the disclosure to the appropriate state agency of all information relating to Company’s use of the Services. Registration is only for State Sales and Use Tax or related registration types.
Customer is responsible for providing Company any necessary transaction data by the fifth (5th) of every month for the previous month’s transaction data. Customer is responsible for maintaining sufficient funds in his bank account to pay his sales tax obligation. Should there be insufficient funds to cover the tax amount due, Company will not be responsible for the remittance of the liability amounts owed.
The completion of Customer’s tax return may vary due to technical problems with Company’s systems, or where Customer has not provided all the necessary information requested by Company or required to submit Customer’s tax return. For any of these or other reasons, Company may not be able to submit Customer’s tax return in a timely manner, or at all.
6. PAYMENT OF FEES
6.1 Customer will pay Company the applicable fees described in the Order Form for the Services in accordance with the terms therein (the “Fees”). Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
Customer shall be responsible for all taxes and other applicable charges levied or imposed"associated with Services other than U.S. taxes based on Company’s net income. In addition, unless otherwise agreed upon in writing, if Zamp offers a discount or any of the Services, such discount shall only apply for a maximum of twelve (12) months after the date of acceptance of such offer.
6.2 A Transaction is defined as any order that is posted, uploaded or otherwise recorded in Zamp by Customer. Transactions can include completed orders, returns or deleted orders. Company reserves the right to assess a customer's transaction tier based on excessive usage of API calls for calculation compared to the number of transactions.
For Customers that ONLY use Zamp for sales tax calculations and no additional sales tax services, a transaction equals the number of API calls for calculation divided by 10.
7. TERM AND TERMINATION
7.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (other than any Setup Period, and collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
7.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
8. WARRANTY
8.1 Company warrants that it will provide the Service: (i) in accordance with any specifications and documentation set forth in the Agreement, as may be updated from time to time; (ii) with the degree of skill and care reasonably expected from a skilled and experienced supplier of services substantially similar to the nature and complexity of the Service; and (iii) as set forth in Company’s accuracy and filing guarantee provided at https://www.ZAMP.com/guarantees/ (“Accuracy Guarantee”).
8.2 Customer’s sole and exclusive remedies and Company’s entire liability for breach of the warranty under Section 8.1 will be: (i) the re-performance of the deficient Service; and (ii) if Company fails to re-perform, Customer may terminate its subscription for the affected Service, provided that such termination must occur within fifteen (15) days of Company’s failure to re-Perform.
8.3 The warranties in Section 8.1 will not apply if: (i) the Service is not used in accordance with the specifications and documentation set forth in the Agreement, (ii) any non-conformity with the warranties in Section 8.1 is caused by Customer, or by any product or service not provided by Company.
8.4 EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8, THE SERVICES ARE PROVIDED “AS-IS” AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY, ITS AFFILIATES, LICENSORS, PARTICIPATING FINANCIAL INSTITUTIONS, THIRD-PARTY CONTENT OR SERVICE PROVIDERS, RETAILERS, DISTRIBUTORS, DEALERS AND SUPPLIERS (COLLECTIVELY, “SUPPLIERS”) DISCLAIM ALL GUARANTEES AND WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICES. COMPANY DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY CUSTOMER FROM COMPANY OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
9. INDEMNITY
9.1 Company shall hold Customer harmless from liability to third-parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder. Customer hereby agrees to indemnify and hold harmless Company against any third party damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of any applicable laws or otherwise from Customer’s use of Services.
10. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR TAX POSITIONS TAKEN BY CUSTOMER OR FOR TAX CALCULATIONS FROM THIRD-PARTY TAX SERVICES; (C) FOR INABILITY TO FILE CUSTOMER’S TAX RETURN; (D) FOR DELAY IN PREPARING CUSTOMER’S TAX RETURN; (E) FOR INCORRECT OR INCOMPLETE CUSTOMER CREDENTIALS OR ACCOUNT INFORMATION PROVIDED TO COMPANY; (F) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (G) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (H) EXCEPT FOR ZAMP’S ACCURACY GUARANTEE (DEFINED ABOVE), FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY, CUSTOMER UNDERSTANDS THAT COMPANY MAY NOT AUDIT OR OTHERWISE VERIFY ANY INFORMATION CUSTOMER PROVIDES, AND IS NOT RESPONSIBLE FOR ANY REJECTION OF CUSTOMER’S TAX RETURN OR ANY RESULTING TAXES, PENALTIES OR INTEREST ARISING FROM USING THE SERVICES. FURTHER, COMPANY SHALL NOT BE RESPONSIBLE FOR ANY TAXES, PENALTIES AND INTEREST THAT ARE ASSESSED AS THE RESULT OF INCORRECT, INCOMPLETE OR MISLEADING INFORMATION THAT CUSTOMER HAVE GIVEN TO COMPANY IN CONNECTION WITH CUSTOMER’S PREPARATION OF CUSTOMER’S TAX RETURN.
11. MISCELLANEOUS
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement, along with all other agreements and policies incorporated herein by reference, is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. However, in the event of a conflict between the terms of this Agreement and all other agreements and policies incorporated herein by reference, the terms of this Agreement will control. No agency, partnership, joint venture, or employment is created as a result of this Agreement Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of law’s provisions.
