Professional Services Terms and Conditions – Tax Services

Heritage Tax Company, Inc

Updated: January 2, 2024

1. Entire Agreement

These Terms and Conditions, together with the engagement letter (“Engagement Letter”) to which these Terms and Conditions are attached, and the Engagement Letter’s other appendixes and applicable Change Orders, if any, constitute the entire agreement between the parties on the subject matter thereof and supersede and merge all prior proposals (including prior proposals of Heritage Tax Company (HTC) regarding the engagement), understandings, and agreements (oral or written) between the parties relating to the subject matter, including, without limitation, the terms of any request for proposal issued to Client or the standard printed terms on any purchase order issued by Client and any non-disclosure or confidentiality agreement between HTC and Client dated prior to the date of the Engagement Letter. No modification, amendment, supplement to, or waiver of these Terms and Conditions or Engagement Letter shall be binding upon the parties unless made in writing and duly signed by both parties. To the greatest extent reasonably possible, the provisions of the Engagement Letter, its Appendixes (including these Terms and Conditions), Implementation Plan, Change Orders, and any other exhibit, attachment, schedule, or other document referenced in or by the Engagement Letter shall be read together and harmonized to give effect to the parties’ intent. In the event of a direct conflict among the express provisions of the foregoing, the Engagement Letter shall be given controlling effect. No provision of these Terms and Conditions will apply to any attest services that may be performed by HTC for Client if such provision would impair HTC’s independence from Client required pursuant to applicable professional standards, such services being governed exclusively by the Engagement Letters issued with respect thereto. HTC may be referred to herein as “we” or “us” or in a similar manner, and Client may be referred to as “you” or in a similar manner, and such references shall be read in context.

2. Commencement and Term

The Engagement Letter shall become effective when signed by duly authorized representatives of both parties and shall remain in full force and effect until the services to be delivered under the Engagement Letter are complete (as reasonably determined by HTC) unless earlier terminated by either party as provided in the Engagement Letter or these Terms and Conditions. Each person executing an Engagement Letter on behalf of a party represents and warrants to the other that he or she has all power and authority to bind the party on whose behalf he or she is executing same.

3. Termination of Agreement

The Engagement Letter may be terminated as follows: (i) by either party immediately upon written notice to the other if either party hereto becomes the subject of voluntary or involuntary bankruptcy or other insolvency proceeding, (ii) by HTC or Client if either party defaults in the performance of any of its covenants and agreements set forth in the Engagement Letter or Change Order (except when such default is due to a cause beyond the control of the party) and such default is not cured within thirty (30) days after notice from either party specifying the nature of such default, and (iii) by HTC or Client with or without cause upon providing thirty (30) days written notice. Termination of the Engagement Letter shall have no effect on either party’s obligation to pay any amount due and owing with respect to such periods prior to the effective date of such termination.

HTC has the right to withdraw from this engagement with immediate effect if Client does not provide us with the information we request in a timely manner, refuses to cooperate with our reasonable requests, or misrepresents any facts. Our withdrawal will release us from any obligation to complete the engagement and will constitute completion of our engagement. Client agrees to compensate us for our time and out-of-pocket expenses through the date of our withdrawal.

4. Fee Estimates and Change Orders

HTC’s Engagement Letter may set forth certain ranges for HTC’s fees charged on any project or services. HTC provides fee estimates as an accommodation to Client. These estimates depend on certain assumptions, including: (a) anticipated cooperation from Client personnel, (b) timely responses to our inquiries, (c) timely completion and delivery of Client assistance requests, (d) timely communication of all significant accounting and financial reporting matters, (e) the assumption that unexpected circumstances will not be encountered during the engagement, and (f) where applicable, the assumption that Client’s hardware platform/computer system will, at the commencement of the services, be fully operable as intended and designed, functioning as necessary and available to HTC without material restriction for the duration of the services. Unless otherwise indicated in the Engagement Letter, fee estimates shall not be construed as or deemed to be a minimum or maximum fee quotation. Although HTC reasonably believes suggested fee ranges are accurate, HTC’s actual fees may vary from its fee estimates.

Services that fall outside the agreed-upon scope of HTC’s engagement shall be covered by a Change Order, or, if the nature and amount of such services are not material to the overall engagement, shall be delineated and included on HTC’s invoice for such services. A “Change Order” means a mutually agreed-upon change in the schedule or the time for HTC’s performance of the services on a project, the scope of specifications of a project, and/or the fees chargeable by HTC to Client, which is reduced to writing using an agreed-upon form that is executed by an authorized representative of each for HTC and Client.

Unless otherwise agreed in the Engagement Letter, miscellaneous expenses incurred by HTC in the course of performing the service will be charged in addition to HTC’s professional fees. Miscellaneous expenses may include, but are not limited to travel, lodging, transportation, and meals for projects requiring travel; clerical processing; telecommunications charges; technology fees; delivery expenses; and all sales, use, ad valorem, excise, or other taxes or other governmental charges.

5. Payment of Fees

Unless otherwise agreed, all invoices are due and payable upon receipt. All business or commercial accounts will be charged interest at the lesser of one percent (1.5%) per month or the maximum rate permitted by law, except where prohibited by law, on Client’s balance due to HTC that is outstanding over thirty (30) days. At our discretion, services may be suspended if Client’s account becomes overdue and will not be resumed until Client’s account is paid in full. Client acknowledges and agrees that we are not required to continue services in the event of a failure to pay on a timely basis for services rendered as required. Client further acknowledges and agrees that in the event HTC stops services or withdraws from this engagement as a result of Client’s failure to pay on a timely basis for services rendered as required by this Engagement Letter, HTC shall not be liable to Client for any damages that occur whether direct or indirect, foreseen or unforeseen, and whether or not the parties have been advised of the possibility of such damages.

Our fees do not include responding to IRS or state or local inquiries, and Client understands that HTC is not responsible for IRS or state or local disallowance of doubtful deductions or deductions unsupported by adequate documentation, nor for resulting taxes, penalties, and interest. Client’s tax returns may be selected for review by the taxing authorities. Any proposed adjustments by an examining agent are subject to certain rights of appeal. In the event of such tax examination, we will be available upon request to represent Client and will charge additional fees for the time and expenses incurred.

In the event HTC is required to respond to a subpoena, court order, government regulatory inquiries, or other legal process related to Client or its management (other than a matter in which HTC is named as a party) for the production of documents and/or testimony relative to information we obtained and/or prepared during the course of this or any prior engagements, Client agrees to compensate us for all time we expend in connection with such response, at our regular rates, and to reimburse us for all related out-of-pocket costs, including attorney’s fees, that we incur. Any services under this paragraph will be deemed a separate engagement and, to the extent permitted by law and applicable professional standards, we will promptly notify you of the matter.

6. Privacy and Engagement Staffing

HTC expressly reserves the right to replace, in its sole discretion, any of our professional project team members, as necessary, to provide quality and timely service to Client. From time to time, and depending upon circumstances, personnel from affiliates of HTC and other HTC -related entities or any of their respective affiliates or from independent third-party service providers (including independent contractors) may participate in providing services related to our engagement hereunder. In addition, HTC may utilize cloud-based services in connection with the delivery of certain services. Solely for the purpose of rendering services hereunder, Client acknowledges that we may share with these parties information obtained in the course of rendering our services. HTC remains committed to maintaining the confidentiality and security of Client’s information, and accordingly, HTC maintains internal policies, procedures, and safeguards to protect the confidentiality of client information and in addition, ensures that our agreements with all service providers appropriately maintain and protect the confidentiality of client information.

Please see HTC’s Privacy Statement located at www.heritagetaxcompany.com/privacy-statement for further information.

Applicable rules in some states require that we advise you that some persons who have an interest in HTC may not be licensed as Certified Public Accountants and may provide services related to this engagement.

7. Allocation of Responsibilities in Respect of Tax Returns

Most tax returns require signatures, under penalty of perjury, by the taxpayer or an officer of the taxpayer affirming that the tax returns and the accompanying schedules and statements are true, correct, and complete to the best of his or her knowledge. Client is responsible for understanding and agreeing with the various amounts, computations, and statements made in the tax returns and accepts responsibility for the results of the tax services rendered. In addition, Client accepts responsibility for reviewing tax notices, assessments, and other tax correspondence. HTC’s services may include advice and recommendations, but all decisions in connection with the implementation of such advice and recommendations shall be the responsibility of, and made by, Client. HTC will not perform any management functions or make management decisions for Client in connection with this engagement.

HTC’s services under this Engagement Letter are subject to and will be performed in accordance with Treasury Department Circular 230 and other professional standards applicable to tax services. HTC’s advice is limited to the tax law as it exists at the time. HTC is under no obligation to notify Client of subsequent changes to applicable law. HTC’s advice is Client and fact specific and accordingly should not be relied upon as applicable to any third party or alternative factual situation.

8. Terms of Ongoing Support and Advice

Any ongoing support and advice provided by HTC, whether or not it is covered by an engagement letter or Change Order, shall be subject to HTC’s Terms and Conditions and will be provided under the same terms and conditions that would apply to services defined in HTC’s Engagement Letters or Change Orders.

9. Intellectual Property Rights

Client acknowledges that HTC owns all intellectual property rights, title, and interest to all materials and information produced or developed by HTC throughout the duration of this engagement, excluding any pre-existing ownership right of Client and without implying any ownership interest in any Client materials, data or other information, all of which shall remain the property of Client. Upon completion of the services contemplated by the Engagement Letter, HTC grants to Client a perpetual paid-up license to use or modify, for internal purposes only, any deliverable produced by HTC and actually delivered to Client, provided that any use or modification of such deliverable, other than for the stated purposes in the Engagement Letter, is not authorized. In addition, Client shall not alter or remove any of HTC’s trademarks, copyright registration marks, patent, or other intellectual property notices applicable to any of HTC’s goods, marketing material, or advertising media and shall not in any way alter any of HTC’s products.

Client shall promptly notify HTC in writing of any infringement of HTC’s intellectual property by third parties of which Client becomes aware. Neither party shall acquire any right, title, or interest in or to the other party’s code, data, business processes, or other information to which such party may have access during the term of the engagement hereunder. All such code, data, business process, and other information shall be solely and exclusively the property of the originating party.

10. Mutual Confidentiality

During the course of performing services, the parties may have access to information that is confidential to one another, including, without limitation, source code, documentation, specifications, databases, system design, file layouts, tool combinations, development methods, or business or financial affairs, which may incorporate business methods, marketing strategies, pricing, competitor information, product development strategies and methods, customer lists, customer information, and financial results (collectively “Confidential Information”). Confidential Information may include information received from third parties, both written and oral, that each party is obligated to treat as confidential.

Confidential Information shall not include any information that (i) is already known by the recipient party or its affiliates, free of any obligation to keep it confidential, (ii) is or becomes publicly known through no wrongful act of the receiving party or its affiliates, (iii) is received by the receiving party from a third party without any restriction on confidentiality, (iv) is independently developed by the receiving party or its affiliates, (v) is disclosed to third parties by the disclosing party without any obligation of confidentiality, or (vi) is approved for release by prior written authorization of the disclosing party.

Without the advance written consent of the other party, except as required by law, regulation, or to comply with professional standards applicable to a party or for the performance of the services, neither party shall disclose to a third-party Confidential Information of the other party. Each party agrees to maintain at least the same procedures regarding Confidential Information that it maintains with respect to its own Confidential Information. Each party may use the Confidential Information received from the other party only in connection with fulfilling its obligations under this Agreement. The parties further agree that expiration or termination of this Agreement, for any reason, shall not relieve either party, nor minimize their obligations with respect to Confidential Information, as set forth herein.

11. Independent Contractor

The relationship between HTC and Client is solely and exclusively that of independently contracting parties.

12. Non-Exclusivity

No right of exclusivity is granted, guaranteed, or implied by HTC and Client entering into any engagement letter. Client acknowledges that HTC regularly performs the same or similar services as are being provided hereunder to third parties.

13. Allocation of Risk and Limitation of Liability

In no event will either party to this Engagement Letter be liable to the other for claims of punitive, consequential, special, or indirect damages. HTC’s liability for all claims, damages and costs of Client arising from this engagement shall be limited to the amount of fees paid by Client to HTC for the services rendered under this Engagement Letter and any corresponding Change Order, provided that the foregoing limitation shall not apply in the event of HTC’s fraud or willful misconduct. Because HTC will rely on Client and its management for the accuracy of the representations made to HTC to perform the services described in the Engagement Letter, Client holds harmless and releases HTC and its owners and employees from all claims, liabilities, losses and costs arising in circumstances where there has been a knowing misrepresentation made by a member of Client’s management that has caused, in any respect, HTC’s breach of contract or negligence.

14. Dispute Resolution

If any dispute arises among the parties regarding the subject matter hereof and such dispute cannot be resolved through informal negotiations and discussion, the parties agree to try in good faith to settle the dispute by mediation administered by the American Arbitration Association under its applicable rules for resolving professional accounting and related services disputes before resorting to arbitration or litigation. Costs of any mediation proceeding shall be shared equally by all parties. Except for an action by us to collect payment of our invoices, HTC and Client agree that no claim arising out of services rendered pursuant to the Engagement Letter or any Change Order shall be filed: (i) in the case of any report or deliverable issued by HTC under the Engagement Letter, no later than two years from the date of such report or deliverable (or if no report or deliverable is issued, two years from the date of the Engagement Letter), or (ii) in the case of any tax form or similar governmental filing, no later than two years after the initial due date of such tax form or filing.

15. Governing Law

Any and all claims relating to agreements between HTC and Client for any service shall be governed by and construed in accordance with the internal laws of the state in which the HTC office which issues the Engagement Letter related to the services is located.

16. Severability

The provisions of these Terms and Conditions shall be severable, so that the invalidity or unenforceability of any provisions will not affect the validity or enforceability of the remaining provisions, provided that no such severability shall be effective if it materially changes the economic benefit of these Terms and Conditions to either party.

17. Notices

All notices required to be given to either party under the Engagement Letter shall be in writing and sent by traceable carrier to each party’s address indicated on the Engagement Letter, or such other address as a party may indicate by at least ten (10) business days’ prior written notice to the other party. Notices shall be effective upon receipt.

18. Electronic Signature

Each party hereto agrees that any electronic signature of a party to the Engagement Letter or any electronic signature to a document contemplated hereby is intended to authenticate such writing and shall be as valid, and have the same force and effect, as a manual signature. Any such electronically signed document shall be deemed (i) to be “written” or “in writing,” (ii) to have been signed, and (iii) to constitute a record established and maintained in the ordinary course of business and an original written record when printed from electronic files. Each party hereto also agrees that electronic delivery of a signature to any such document (via email or otherwise) shall be as effective as manual delivery of a manual signature. For purposes hereof, “electronic signature” includes, but is not limited to: (i) a scanned copy (as a “pdf” (portable document format) or other replicating image) of a manual ink signature, (ii) an electronic copy of a traditional signature affixed to a document, (iii) a signature incorporated into a document utilizing touchscreen capabilities, or (iv) a digital signature. Neither party shall contest the admissibility of true and accurate copies of electronically signed documents on the basis of the best evidence rule or as not satisfying the business records exception to the hearsay rule.

19. Record Retention

We will retain records related to this engagement pursuant to our record retention policy. At the end of the relevant time period, we will destroy our records related to this engagement. However, Client’s original records will be returned to Client upon the completion of the engagement. When records are returned, it is Client’s responsibility to retain and protect the records for possible future use, including potential examination by governmental or regulatory agencies.

20. Assignment

The Engagement Letter to which these Terms and Conditions are attached shall be binding on the parties hereto and their respective successors and assigns. Neither party may assign this Engagement Letter without prior written consent of the other, except that HTC may assign its rights and obligations under this Engagement Letter without the approval of Client to an entity that acquires all or substantially all of the assets of HTC or to any subsidiary or affiliate or successor in a merger, acquisition, or change of control of HTC; provided that in no event shall such assignment relieve HTC of its obligations under this Engagement Letter.

21. Force Majeure

Either party may suspend (or if such suspension continues for more than thirty (30) days, terminate) its obligations (except the obligation to pay for services previously rendered) under the Engagement Letter or any amendment or Change Order, if such obligations are delayed, prevented, or rendered impractical or impossible due to circumstances beyond its reasonable control, including, without limitation, fires, floods, storms, washouts, tsunamis, earthquakes, wars (declared or undeclared), civil disturbances, accidents, terrorist acts (including biochemical attacks), health pandemics, acts of any governmental body, damage to its plants and equipment, computer network problems caused by any Internet Service Provider or telecommunications company servicing HTC and/or Client, or acts of God or events beyond a party’s control (collectively referred to herein as “Force Majeure”). Each party will use reasonable efforts to promptly minimize the duration and consequences of any failure of or delay in performance resulting from a Force Majeure event. In such event, the affected party will not be liable to the other for delay or failure to perform its obligations under this Engagement Letter.