This Agreement ("Agreement") is made by and between TINCheck LLC, having its principal place of business at 200 Ballardvale Street 4th Floor Wilmington, MA 01887 and the User ("Applicant").
TIN Name Matching Terms:
Applicant certifies that their company has filed forms 1099-B, DIV, INT, MISC, OID or PATR in the past and that any TIN/Names being checked relate to an account(s) where a reportable payment subject to backup withholding is made or is likely to be made as defined under section §3406(b)(1) of the Internal Revenue Code.
Applicant agrees to:
a) Comply with all requirements of revenue procedure 2003-9;
b) Transmit only name/TIN combinations relating to accounts with respect to which a reportable payment is made, or is likely to be made, on or after the effective date of revenue procedure 2003-9;
c) Transmit only name/TIN combinations that have not been previously transmitted by that participant to the TINCheck Service for matching;
d) Maintain the confidentiality of information obtained through TIN solicitation activities in accordance with the requirements of §31.3406(f)-1 of the Employment Tax Regulations;
e) Provide the TINCheck Service with the information necessary to monitor the effectiveness of the Program.
Applicant further certifies that all users of this TIN Name Matching Service are either an "Authorized Agent" or "Delegated User" as defined by the IRS in the TIN Matching Revenue Procedure to collect and match TINs, names, and/or name controls on behalf of the applicant and appoints TINCheck LLC as Proxy for Applicant with respect to this procedure.
Under the penalties of perjury, Applicant declares they have examined the above information as well as the Authorized Agent / Delegated Users and believe the information provided is true, correct and complete by their certification. This Certification Statement holds TINCheck LLC harmless from any penalties or charges that may result from any misuse by the Authorized Agent or Delegated User and the Payer which they represent. Applicant certifies that each agent will have their own username & password which only they will use.
Death Master File Access Terms:
1. The undersigned hereby certifies that access to the NTIS Limited Access DMF (as defined in 15 CFR §1110.2) is appropriate because the undersigned (a) has (i) a legitimate fraud prevention interest, or (ii) a legitimate business purpose pursuant to a law, governmental rule, regulation, or fiduciary duty, (b) has systems, facilities, and procedures in place to safeguard such information, and experience in maintaining the confidentiality, security, and appropriate use of such information, pursuant to requirements similar to the requirements of section 6103(p)(4) of the Internal Revenue Code of 1986, and (c) agrees to satisfy such similar requirements.
2. The undersigned further certifies that with respect to DMF of any deceased individual at any time during the three-calendar-year period beginning on the date of the individual's death, which is received by the undersigned, the undersigned shall not: (i) disclose any information contained on the DMF with respect to any deceased individual to any person other than a person who meets the requirements of each of (a), (b), and (c) in paragraph (1); (ii) disclose any information contained on the DMF with respect to any deceased individual to any person who uses the information for any purpose other than a legitimate fraud prevention interest or a legitimate business purpose pursuant to a law, governmental rule, regulation, or fiduciary duty; (iii) disclose any information contained on the DMF with respect to any deceased individual to any person who further discloses the information to any person other than a person who meets the requirements of each of (a) and (b) in paragraph (1); or (iv) use any information contained on the DMF with respect to any deceased individual for any purpose other than a legitimate fraud prevention interest or a legitimate business purpose pursuant to a law, governmental rule, regulation, or fiduciary duty.
3. The undersigned acknowledges that failure to comply with the provisions of paragraph (3) may subject the undersigned to penalties under 15 CFR §1110.200 of $1,000 for each disclosure or use, up to a maximum of $250,000 in penalties per calendar year.
LICENSE AGREEMENT RECITALS
A. TINCheck has developed and implemented a proprietary electronic information verification and authentication system which allows its customers to verify and authenticate information ("TINCheck Product").
B. Applicant desires to license from, and engage the services of TINCheck in connection with providing such services to its clients on the terms and conditions provided herein.
NOW, THERFORE, the parties hereto, in consideration of the mutual covenants and agreements contained herein and other good valuable consideration, the receipt and sufficiency of which are hereby acknowledged, agree as follows:
"TINCheck Services" means the provision of electronic access using a username & password or Web Service to the TINCheck Product over a computer network and related technical support services via (a) a web-based browser program and/or a Web Service that TINCheck makes available to Customers and (b) any related manuals, documentation and supporting materials as may be made available by TINCheck.
2. LICENSE: SERVICES.
Subject to the terms and conditions of this Agreement, TINCheck hereby grants to Applicant a non-exclusive and non-transferable license to access and use the TINCheck Services and Applicant hereby engages TINCheck to provide such TINCheck Services and accepts such license.
Applicant may use the TINCheck Services (a) for Applicant's (and Applicant's affiliates) own internal business purposes and operations, and (b) as a service to its clients in connection with their respective business operations. No license or right to use, reproduce, translate, rearrange, modify, enhance, display, sell, lease, sublicense or otherwise distribute, transfer of dispose of the TINCheck Product, in whole or in part, is granted except as expressly provided by this Agreement. Applicant warrants they are an end-user of the service and will not be reselling the TINCheck Services. Neither Applicant nor any of its affiliates shall reverse engineer, decompile or disassemble the TINCheck Product. Nothing in this Agreement will entitle Applicant or any of its affiliates to access or use the source code of the TINCheck Product. The use of the TINCheck Products is further restricted to the purpose(s) and exception(s) set forth in the confidential application the terms of which are included herein by reference. Applicant warrants that only authorized or delegated users will be allowed access to the TINCheck Services.
This Agreement will become effective as of the Effective Date set forth previously, and will terminate 12 months after the Effective Date.
The minimum TINCheck Services available via this contract are: Type of Checks:
- TIN/Name Check (Available Interactively)
- USPS Valid Format (Available Interactively)
- OFAC (Interactive) (Available Interactively)
- Death Master File (Available Interactively)
- Various Other Lists (Available Interactively)
- EIN Lookup (Available Interactively)
The price for these services is:
$__ for __ checks. Checks are good for one year and will expire 12 months from the date of purchase.
$ __ per month for __ checks per month with any overage billed at $__/check. During the Term of this agreement, the monthly prices set forth above are subject to change upon a change in TINCheck's data costs.
7. MONTHLY BILLING (does not apply to Prepaid or Bulk plans).
The credit card specified in the Payment Authorization form attached herein will be billed monthly for the charges as defined in the PRICING section. Billing will be in advance for the minimum monthly fee and in arrears for any additional checks or users.
If the credit card specified in the Payment Authorization form is declined, this shall constitute a material breach of this Agreement. Applicant shall pay a late fee of one and one-half percent (1 ½ %) per month on all amounts due but not paid and TINCheck may, as a result of such late payment, among other remedies available to it, discontinue its license and provision of TINCheck Services to Applicant in accordance with Section 17 below.
Applicant is solely responsible for payment of any taxes (including sales or use taxes, transfer taxes, excise taxes, intangible taxes, property taxes, and similar taxes and duties) resulting from Applicant's acceptance of the license granted hereunder and use of the TINCheck Services, excluding, however, and taxes payable by TINCheck as a result of income earned by TINCheck hereunder. Applicant shall pay any such taxes as they fall due to TINCheck for remittance to the appropriate authority. Applicant shall hold harmless TINCheck from all claims and liability arising from Applicant's failure to report or pay such taxes.
a. Applicant Obligations. Applicant acknowledges that the TINCheck Product, TINCheck Services, and any other information provided to Applicant by TINCheck, incorporate confidential and proprietary information developed by, acquired by, or licensed to TINCheck ("TINCheck Confidential Information"). Applicant will take (and will cause its affiliates to take) all reasonable precautions necessary to safeguard the confidentiality of the TINCheck Confidential Information. Neither Applicant nor any of its affiliates will make any unauthorized use of the TINCheck Confidential Information or disclose in whole or in part or the TINCheck Confidential Information to any individual or entity, except to those of Applicant's employees or consultants who require access for Applicant's authorized use of the TINCheck Confidential Information and agree to comply with the use and nondisclosure by it or any of its affiliates of the TINCheck Confidential Information under this Agreement. Applicant acknowledges that any unauthorized use or disclosure by it or any of its affiliates of the TINCheck Confidential Information may cause irreparable damage to TINCheck. If TINCheck becomes aware of Applicant's breach or threatened breach of this Section 10(a), TINCheck may suspend any and all rights granted to Applicant under this Agreement and shall be entitled to injunctive relief, without the need of posting a bond, in addition to all legal or equitable relief that may be available to TINCheck.
b. Exceptions. The confidentiality obligations set forth in this Section 10 shall not apply, or shall cease to apply, to information which (i) was publicly available at the time of disclosure to the other party, (ii) becomes generally known to the public after disclosure to the other party, through no fault of the other party, or (iii) is disclosed under force of law, government regulation or court order.
Subject to Section 20 below, Applicant shall indemnify and hold TINCheck, and its officers, directors, employees, and agents, harmless from and against any claims, losses, damages, liabilities, costs or expenses of any nature (including reasonable attorneys' fees) suffered or incurred by any of them to the extent that such are caused by or arise in connection with (i) any material breach of Applicant's representations and warranties contained herein, (ii) Applicant's use of the TINCheck Services hereunder.
12. APPLICANT'S REPRESENTATIONS AND WARRANTIES.
Applicant represents and warranties to TINCheck that:
a. Applicant's agreement to license the TINCheck Services from TINCheck and to engage TINCheck to perform the TINCheck Services hereunder does not violate any agreement or obligation between Applicant and any third party.
b. Neither any information delivered by Applicant to TINCheck in support of this Agreement nor Applicant's performance of this Agreement will infringe on any copyright, patent, trade secret or other proprietary right held by any third party.
c. None of the activities for which Applicant has engaged the services of TINCheck shall violate any international, federal, state, or local law or regulation relating to individual privacy. Neither Applicant nor any of its affiliates will use the TINCheck Services for, (i) any unlawful, fraudulent, libelous, defamatory, threatening, abusive or otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any local, state, national or foreign law, including without limitation the U.S. export control laws and regulations.
d. When executed and delivered by Applicant, this Agreement will constitute the legal, valid, and binding obligation of Applicant, enforceable in accordance with its terms.
13. TINCHECK'S REPRESENTATIONS AND WARRANTIES.
TINCheck represents and warranties to Applicant that:
a. TINCheck's agreement to license the TINCheck Services to Applicant and to perform the TINCheck Services hereunder does not violate any agreement or obligation between TINCheck and any third party.
b. To the best of TINCheck's knowledge, the TINCheck Services will not infringe on any copyright, patent, trade secret or other proprietary right held by any third party.
c. When executed and delivered by TINCheck, this Agreement will constitute the legal, valid, and binding obligation of TINCheck, enforceable in accordance with its terms.
d. TINCheck will not use Applicant data for, (i) any unlawful, fraudulent, libelous, defamatory, threatening, abusive or otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any local, state, national or foreign law, including without limitation the U.S. export control laws and regulations.
14. TINCHECK OUTAGE POLICY.
Applicant acknowledges and understands that TINCheck does not warrant that the TINCheck Product or Services will be uninterrupted or error free and that TINCheck may occasionally experience outages due to disruptions that are not within TINCheck's control. Any service outage shall not be considered a breach of this agreement by TINCheck.
15. FORCE MAJEURE.
To the extent one of the parties hereto is prevented from performing any of its obligations hereunder due to circumstances reasonably beyond its control (including, but not limited to, the action or inaction of any governmental, civil or military authority; a strike, lockout or other labor dispute; or a fire, flood, war, riot, theft, earthquake or other natural disaster, acts of terrorism or other civil disturbance), such party shall not be liable to the other party for any losses or damages arising out of such non-performance. In the event a party hereto is prevented from meeting its obligations by such unforeseen circumstances, and such party is unable to provide assurances that recovery will occur within fifteen (15) days, or recovery fails to occur, the other party may terminate the Agreement at the end of such period, and neither party shall be liable to any other arising out of such termination, except for obligations existing prior to such termination.
Any notice or correspondence required or permitted to be given or forwarded hereunder or by law shall be effective on receipt and shall be considered properly given if in writing and delivered personally or faxed to 818 876-0202 with confirmation or sent by any commercially reasonable means or receipted delivery, addressed, with respect to Applicant, to the address of Applicant most recently provided in writing to TINCheck, and with respect to TINCheck, to the address of TINCheck appearing on its web site at the time of such notice.
Either party shall have the right to terminate this Agreement prior to expiration of its term: (i) in the event of the other party's material breach of any of the provisions hereof and the failure of the breaching party to cure such breach to the reasonable satisfaction of the non-breaching party within thirty (30) days after receipt of written notice informing it of such material breach, (ii) in accordance with the provisions of Section 15 hereof, of (iii) in the event a petition seeking composition of creditors, the protection afforded by the United States Bankruptcy Code or benefit of other laws affecting the rights or creditors generally is filed by or against the other party and such petition remains unstayed or undismissed for a period of ninety (90) days. Upon termination of this Agreement, all license rights granted to Applicant hereunder will terminate. Promptly upon termination of this Agreement for any reason, Applicant must return or destroy, as requested by TINCheck, all materials pertaining to the TINCheck Services (including all copies thereof). The Applicant may retain return response data associated with the lawful operation of the TINCheck Services prior to termination.
All trademarks, service marks, patents, copyrights, trade secrets, know-how, and other proprietary rights in or related to the TINCheck Product, or otherwise used to perform services for Applicant (or any of its affiliates) hereunder, are and will remain the sole and exclusive property of TINCheck, whether or not specifically recognized or perfected under applicable law. TINCheck shall own all rights, title and interest, including all intellectual property rights, in and to any improvements to the existing TINCheck Services or any new programs, upgrades, modifications or enhancements developed by TINCheck in connection with rendering any services to Applicant (or any of its affiliates), even when refinements and improvements result from Applicant's request. To the extent, if any, that ownership in such refinements and improvements does not automatically vest if TINCheck by virtue of this Agreement or otherwise, Applicant hereby transfers and assigns (and, if applicable, shall cause its affiliates to transfer and assign) to TINCheck all rights, title, and interest which Applicant or any of its affiliates may have in and to such refinements and improvements.
19. NON EXCLUSIVITY
Applicant acknowledges and agrees that TINCheck is in the business of licensing its products and services, and that TINCheck may license its products and services to third parties, including competitors of Applicant (or its affiliates), which are the same or similar to the TINCheck Product and the TINCheck Services provided to Applicant (or its affiliates).
20. LIMITATION OF LIABILTIES.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY HERETO OR TO ANY THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES OF ANY KIND OR NATURE, INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOSS OF DATA, OR FRUSTRATION OF BUSINESS EXPECTATIONS, WHETHER ARISING OUT OF SUCH PARTY'S BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE). NEITHER PARTY SHALL ASSERT ANY SUCH CLAIM AGAINST THE OTHER OR ITS SUBSIDIARIES OR AFFILIATED COMPANIES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, OR EMPLOYEES. TINCHECK 'S MAXIMUM LIABILITY HEREUNDER FOR ANY CLAIMS WHATSOEVER IS EXPRESSLY LIMITED TO THE AMOUNT PAID UNDER THIS AGREEMENT BY APPLICANT TO TINCHECK DURING THE 3-MONTH PERIOD IMMEDIATELY PRECEDING THE CAUSE GIVING RISE TO THE CLAIM, IF ANY. NO CLAIM MAY BE BROUGHT BY THE APPLICANT OR ANY OF ITS AFFILIATES UNDER THIS AGREEMENT MORE THAN ONE YEAR AFTER THE ACCRUAL OF THE CLAIM.
21. DISCLAIMER OF WARRANTIES.
Except as otherwise specifically provided herein, the TINCheck Services and TINCheck Products are provided hereunder by TINCheck "as is" without warranty of any kind. Except as otherwise specifically provided herein, to the maximum extent permitted by law, TINCheck expressly disclaims any and all warranties, conditions, representations, and guarantees with respect to the TINCheck Product and TINCheck Services, whether express or implied, arising by law, custom, prior oral or written statements, or otherwise, including, without limitation, any warranty or merchantability, or non-infringement. No representation or other affirmation of fact, including, without limitation, statements regarding capacity, suitability for use or performance of the TINCheck Product and TINCheck Services, whether made by employees of TINCheck or otherwise, which is not contained in this Agreement, shall be deemed to be a warranty by TINCheck for any purpose, or give rise to any liability of TINCheck whatsoever.
22. GOVERNING LAW; VENUE.
This Agreement shall be governed by and construed in accordance with the laws of the State of California, without reference to any jurisdiction's conflict of laws principles, and all proceedings relating to the subject matter hereof shall be maintained exclusively in the courts situated in Los Angeles County, California. Applicant hereby consents to personal jurisdiction and venue therein and hereby waives any right to object to personal jurisdiction or venue.
No provision of this Agreement shall be deemed waived, amended or modified by either party, unless such waiver, amendment or modification is in writing and signed by the party against whom enforcement of such waiver, amendment or modification is sought. The failure of a party to enforce at any time any of the provisions of the Agreement, or the failure to require at any time performance by one of both of the parties of any of the provisions of the Agreement, shall in no way be construed to be a present or future waiver or such provisions, nor in any way affect the ability of a party to enforce each and every such provision thereafter.
The Agreement shall inure to the benefit of, and shall be binding upon, both parties and their respective successors and permitted assigns. Neither party may assign or delegate this Agreement or any of its rights or duties under this Agreement without the prior written consent of the other party, except as expressly set forth herein or to an individual or entity into which it has merged or which has otherwise succeeded to all or substantially all of the assets or equity securities of the assignor, and which has assumed in writing or by operation of law, the assignor's obligations under this Agreement.
25. INVALID PROVISIONS; SEVERABILITY.
Any provision of this Agreement which is prohibited and unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibitive or enforceability without invalidating the remaining provisions in any other jurisdiction.
26. ENTIRE AGREEMENT; GENERAL.
This Agreement and its attachments represent the complete understanding and agreement of the parties hereto with respect to the subject matter hereof and supersedes any prior of contemporaneous agreements, whether written or oral, between the parties. This Agreement may not be modified or amended, except by a written instrument executed by each of the parties hereto. This Agreement is for the sole benefit of the parties hereto and is not for the benefit of any third party. The parties hereto shall be deemed to be independent contractors hereunder, and as such, neither party shall be, nor hold itself out to be, an employee or agent of the other party. The language used in this Agreement shall be deemed to be language chosen by both parties hereto to express their mutual intent, and no rule or strict construction against either party shall apply to licenses granted herein or to any term or condition of this Agreement.