March 3, 2020
MASTER SERVICE AGREEMENT
GENERALLY APPLICABLE TERMS AND CONDITIONS OF SERVICE
These Generally Applicable Terms and Conditions of Service and any/all applicable Service Schedule(s) are located at https://commpliancegroup.com/legal-center/ (these “Terms”), together with any applicable Service Order Document(s)(“Service Order”) and applicable Supplemental Terms (collectively, the “Agreement”) constitute a binding agreement between The Commpliance Group, Inc. (“TCG”) and Customer (each, a “Party”) under which TCG provides Customer access to and delivers TCG’s Services, provides access to and use of its proprietary AccuCompliance compliance management software platform (“AccuCompliance Platform”), and/or provides Consulting Services and any ad hoc, on request, or “Out-of-Scope” services. Customer accepts and agrees to be bound by these Terms by executing a Service Order that references these Terms or by using TCG’s Services.
Unless otherwise defined in the Agreement, capitalized terms have the following meaning:
“AccuCompliance Platform” means TCG’s proprietary software database platform.
“AccuReg” means TCG’s Subscription-Based and Fixed Fee regulatory compliance maintenance service.
“AccuCorp” means TCG’s Subscription-Based and Fixed-Fee corporate compliance maintenance service.
“AccuLicense” means TCG’s Fixed-Fee licensing, registration and Governmental authorization procurement service.
“AccuAgent” means TCG’s Fixed-Fee registered agent service.
“AccuTax” means TCG’s Fixed-Fee tax and 911 fee compliance maintenance service.
“Application” means any document, filing, pleading, or form that Customer is required by law or regulation to file with a Governmental Agency for the purpose of obtaining a license, registration or authorization to exist, transact business, operate, or offer its services to consumers.
“Consulting Services” means services either distinct from or supplemental to any Fixed-Fee or Subscription-Based Service, including professional consulting services, to be performed for Customer by TCG’s employees or contractors. Performance of TCG Consulting Services is governed by the applicable terms set forth in this Agreement.
“Compliance Profile” means the scope and nature of the licensing, registration, and authorizations procured by Customer through TCG and all federal, state and local compliance services, including registered agent services, outsourced by Customer to TCG for compliance management and maintenance, pursuant to this Agreement.
“Data Request” means any routine or non-routine TCG request and/or requirement for Customer to provide information that is required to accurately and timely prepare and submit an Application or Report to a Governmental Agency. Data will usually be requested in the form of Data Request Worksheets for Customer to fill out.
“Escalation & Referral” means the multi-step process utilized by TCG when confronted by Out-of-Scope issues arising from Customer or a Governmental Agency that, in the sole discretion of TCG, implicates a legal issue and thus necessitates legal advice or otherwise cannot be addressed by TCG within the scope of the Fixed-Fee and/or Subscription-Based services provided by TCG to Customer.
“Fixed-Fee Service” means any Service provided by TCG to Customer pursuant to a one-time, non-recurring fixed charge and includes all AccuLicense and AccuTax Services, most a la carte services, and may include ad hoc services requested by Customer.
“Governmental Agency” means an agency of the federal, state or local government with jurisdictional responsibility over specific regulatory, corporate or tax-related compliance, including, but not limited to the Federal Communications Commission, Secretaries of State (or equivalent), Departments of Revenue (or equivalent), Public Utility Commission (or equivalent) and includes non-governmental administrators of government programs subject to the authority of a
governmental agency, e.g., Universal Service Administrative Company (“USAC”), Solix, Rolke Loube Salzer, Neustar, etc.
“Intellectual Property” means all trade secrets, patents and patent applications, trademarks (whether registered or unregistered and including any goodwill acquired in such trademarks), service marks, trade names, copyrights, moral rights, rights in Inventions, and all other intellectual property and proprietary rights (whether registered or unregistered, any application for the foregoing, and all rights to enforce the foregoing), and all other equivalent rights that may exist anywhere in the world.
“New Report” means a Report that is newly-created or a materially changed legacy Report which is either a Non-Routine Filing or does not become a Routine Filing until the second annual submission deadline of the New Report.
“Non-Streamlined FCC 214” means an authorization or license authorizing a company to provide international long distance service that originates or terminates to the U.S. public switched telephone network where the Applicant Company does not qualify for streamlined treatment by the FCC or is otherwise removed from the streamlined process due to factors such as non-U.S. citizen ownership.
“Non-Routine Filing” means any Report that is not a Routine Filing as defined above
“Out-of-Scope Service” means any Service requested and/or performed by TCG that is not covered by the Scope of Work associated with a Fixed-Fee or Subscription-Based Service, as further defined herein, including Consulting Services, which is provided on a time & materials basis, unless alternative billing arrangement is agreed upon by Customer and TCG.
“Report” means any document, filing, return, report or submission that Customer is required by law or regulation to remit to a Governmental Agency by a pre-determined filing deadline, whether on a recurring or non-recurring basis.
“Routine Filing” means any Report that is mandated by a Governmental Agency and is required to be filed in regular intervals, as further defined in this Agreement.
“Strategic Partner” means an independent, third-party provider of services that are either purchased and resold by TCG or whose services compliment TCG services and are sold and delivered to Customer by the Strategic Partner independently from TCG. Wherever indicated, a Strategic Partner’s terms & conditions of service are separate and distinct from TCG’s terms & conditions of service.
“Subscription-Based Service” means any Service provided by TCG pursuant to a fixed-monthly, fixed-quarterly, or fixed-annual basis and billed by TCG to Customer on a recurring basis and includes most AccuReg and AccuCorp Services.
“Streamlined FCC 214” means an authorization or license authorizing a company to provide international long distance service that originates or terminates to the U.S. public switched telephone network where the Applicant Company qualifies for streamlined treatment by the FCC and is not removed from the streamlined process.
“Services” means the TCG service offerings to which Customer subscribes, purchases, or otherwise authorizes TCG to provide, as specified in the applicable Service Order or other written or verbal approval, or in exigent circumstances, as deemed reasonably necessary, in TCG’s sole discretion, to maintain Customer’s compliance and mitigate harm.
“Service Order” means the Customer accepted Scope of Work and Fee Proposal covering the scope of TCG Services Customer agreed to purchase, as updated from time to time to reflect New or Additional Services accepted by Customer.
“Tax Engine Data Report” means the tax and fee data report output by a vendor of tax calculation software, including Avalara and CCH SureTax.
Overview of Services
TCG is a professional consulting services firm, specializing in serving the communications industry, which provides a variety of efficient, accurate, and professionally-delivered Corporate, Regulatory and Tax-related compliance services to customers. Services available from TCG include, but are not limited to, incorporation and formation of corporate entities; foreign corporate and LLC registrations; regulatory licensing, registration and authorization procurement services; outsourced corporate, regulatory and/or communications tax compliance solutions; nationwide registered agent services; consulting services; and any other service offered by TCG and accepted by Customer. TCG uses its proprietary, “software-as-a-service” compliance platform, AccuCompliance, to facilitate, streamline, and manage Customer’s unique “Compliance Profile.” Through the AccuCompliance Platform, Customer may purchase, on-board, and manage its “Compliance Profile.” Customer’s Compliance Profile is the range of outsourced compliance services TCG has been hired by Customer to deliver under this Agreement and may include any or all of the following:
- AccuLicense: Regulatory licensing, registration and authorization procurement and Corporate registration and authorization procurement services. Detailed terms of service available at Service Schedule 1;
- AccuReg: Regulatory compliance reporting services. Detailed terms of service available at Service Schedule 2;
- AccuCorp: Corporate compliance reporting services. Detailed terms of service available at Service Schedule 3;
- AccuAgent: Registered agent for service of process services. Detailed terms of service available at Service Schedule 4
- AccuTax: Communications tax and 911 fee compliance reporting services. Detailed terms of service available at Service Schedule 5.
SERVICES ANCILLARY TO OR NOT DIRECTLY PROVIDED BY TCG, INCLUDING BUT NOT LIMITED TO LEGAL SERVICES, ARE SUBJECT TO THE TERMS AND CONDITIONS OF THE RESPECTIVE VENDORS AND/OR STRATEGIC PARTNERS OF TCG (ALL OF WHICH ARE INDEPENDENT, THIRD-PARTY PROVIDERS OF SPECIALIZED SERVICES). IF YOU CHOOSE TO ENGAGE SUCH VENDORS OR STRATEGIC PARTNERS AT ANY TIME AND IN ANY MANNER, YOU AGREE THAT YOU HAVE A DIRECT RELATIONSHIP WITH THEM AND ARE SOLELY RESPONSIBLE FOR ANY SUCH DEALINGS. ANY DISPUTES ARISING OUT OF SUCH AGREEMENTS ARE SOLELY BETWEEN THE STRATEGIC PARTNER/THIRD PARTY PROVIDER AND CUSTOMER, AND TCG SHALL HAVE NO LIABILITY FOR ANY ACTS OR OMISSIONS ARISING OUT OF SUCH ARRANGEMENT WHATSOEVER.
ESCALATION & REFERRAL OF LEGAL/HIGH RISK MATTERS
TCG is not a law firm, does not provide legal services and its consulting services are not a substitute for legal services. Legal, risk-based, or otherwise sensitive non-routine compliance issues and tasks that must be addressed to ensure Customer’s compliance with applicable rules, regulations and laws shall be “out of scope” and shall trigger TCG’s Issue Escalation & Referral Process. When this occurs, TCG will provide Customer notice of the issue and the following options:
- Engage TCG’s affiliated law firm, Marashlian & Donahue, PLLC, The CommLaw Group (“CLG”), for legal services under a separate engagement agreement with CLG (conditioned on clearance of ethical conflicts of interest);
- Request TCG forward the matter and associated materials to Customer’s internal team or chosen attorney for processing and handling; or
- Assume the risk of non-compliance by not completing the non-routine work at all.
Pricing of Services
TCG offers its services according to the fee structure specified in Customer’s Service Order, and any applicable Service Schedule, as incorporated herein by reference. TCG uses several methods of pricing based on the type of service provided, including:
- Subscription-Based Services – Fixed Fee Annual
- Subscription-Based Services – Fixed Fee Monthly
- Fixed-Fee Services – One-Time, Non-Recurring
- Fixed-Fee Services – One-Time, a la carte and Recurring, a la carte
- Usage-Based (Time & Materials basis) – Applicable to Out-of-Scope Services, unless Customer and TCG agree, in advance, to an alternative billing arrangement.
While TCG endeavors to provide the broadest range of services reasonably possible under Fixed-Fee or Subscription-Based arrangements, in TCG’s sole discretion, there may be instances where the Service which Customer needs is deemed “Out-of-Scope.” If a Service is Out-of-Scope of a Fixed-Fee or Subscription-Based Service, TCG may provide such service as a Consulting service upon Customer notice and written or verbal authorization.
SCOPE OF SERVICES – DISTINGUISHING “OUT-OF-SCOPE” AND “IN SCOPE” SERVICES
The services which TCG shall provide to Customer are strictly limited to the Scope of Work identified in Customer’s Service Order and any applicable Service Schedule. “In-Scope” work alone may not satisfy all of Customer’s compliance obligations.
What is Out-of-Scope and Not Included in TCG’s Fixed-Fee or Subscription-Based Services (for purposes of this section, “Fixed-Fees”)?
Examples of “Out of Scope” services not covered by the Agreement and its Service Schedules include but are not limited to:
- Optional, Non-Mandatory and Exceptional One-Time Event Reports. Preparation and filing of optional or non-mandatory reports, and reports not required to be filed on an ongoing, repetitive basis (collectively “Non-Routine Filings”) are Out of Scope and not covered by Fixed-Fees.
- Resolving Notices and Amending Returns. Fixed-Fee Services do not include
notices related to untimely filing, failure to file, late payment or underpayment due to Customer action, nor to amending returns, applying for credit or refund, or correcting Customer filing errors.
- Re-Filings, Re-Submissions and Delinquent Filings. Fixed-Fee Services exclude re-filing or resubmission of Reports after a reporting deadline has passed. Also excluded are filings submitted to cure errors, omissions or oversights attributable to a Governmental Agency, or to Customer errors. This exclusion applies to Customer’s failure to fulfill Responsibilities under this Agreement, including Customer failure to provide correct information in a timely manner or to secure requisite legal analysis of its reporting obligations before or during the term of this Agreement.
- Duplicate Reports and Extension Requests. Should it become necessary for TCG to file extension requests or additional reports due to the Customer’s failure to supply the underlying data, or for any other failure to fulfill the Customer’s Responsibilities as described herein, such additional work shall fall outside the scope of the Agreement. The Customer agrees that TCG is not obligated to file any report if the Customer fails to conduct due-diligence, to provide correct information necessary to complete reports in a timely manner, or secure requisite legal analysis of its reporting obligations before or during the term of this Agreement. TCG shall not be responsible for any government punitive actions resulting from the failure, due to Customer error, to submit a report on a timely basis.
- New Reports and Filings (“New Reports”). TCG shall monitor regulatory developments from all Governmental Agencies covered by its services to determine whether newly-established Reports are applicable to the Customer. Due to uncertainties associated with “new” Reports, the preparation of such reports for the “first time” is considered “out-of-scope” of the Service even if the new report is determined to be an on-going, prospective reporting obligation. Thereafter, such new reports will be included within the Service.
- Reports Due After Termination or Cancellation, After Breach and/or During Suspension. Reports due prior to the effective date of this Agreement or following the termination or cancellation of this Agreement are excluded from the Fixed-Fee Service. Reports which become due during a period of suspension due to non-payment or other uncured breach of this Agreement that TCG, in its reasonable and exclusive judgment, determines must be filed following cure, for purposes of mitigating against further harm or otherwise, are also excluded.
- Consulting Services. Any service not subject to Fixed-Fees shall be treated as a “Consulting Services” subject to the hourly rates of the professional responsible for delivering the service to Customer or to such fee arrangement as agreed upon by Customer and TCG.
Default Billing for Out-of-Scope Services
Except where TCG and Customer have agreed in advance to an
alternative billing arrangement, our Consulting Services fees for out of scope
work are billed at the following hourly rates based on which professional
provides the Consulting Services:
APPLICABLE HOURLY RATE
Senior Managing Consultant
Hourly rates are adjusted periodically, generally effective each January 1st. TCG assigns particular tasks to its professionals based on the nature of each matter. Factors considered include: existing client assignments or relationships, proficiency, efficiency and availability, the need for expedited handling, and other factors, as determined in TCG’s sole discretion. All time is billed in increments of one-tenth of an hour, with a minimum increment of two-tenths of an hour.
Customer’s Responsibility to Provide Data
Collectively, TCG’s data collection procedures are referred to as “Data Requests.” Failure to supply complete and accurate responses to TCG’s Data Requests in a timely manner hinders TCG’s ability to maintain efficient, cost-effective corporate
compliance on Customer’s behalf.
Customer’s primary responsibility is to supply TCG with complete and accurate information and data (hereafter, collectively referred to as “Data”) in response to TCG’s Data Requests.
For all Routine Corporate Compliance & Reporting obligations, TCG will collect Data on customized data collection worksheets specially prepared for each Customer by the assigned Regulatory Consultant, based on information Customer has provided about Customer’s company, its services, and certain revenue accounting and allocation practices. TCG may also collect Data for certain Non-Routine Reports through direct communication with the Customer.
Routine Data Request Schedule.
Most Reports are prepared using Data provided electronically through “Routine Data Requests.” Routine Data Requests are pre-formatted Data Requests which request the same or similar types of information on an ongoing basis. Customer agrees to answer Routine Data Requests according to the following schedule:
- Monthly and Quarterly Data Requests must be returned to TCG within five (5) days after the final day of the reporting month or quarter.
- Annual Data Requests cover annual telecommunications reporting obligations and must be returned to TCG by March 15th of each year.
Data Request Process. Customer is responsible for remitting all Data to TCG in accordance with the following process:
- Absent unique circumstances, TCG will send Customer a Data Request Worksheet or Data Request, via e-mail within thirty (30) days of the reporting deadline, or on the first day after the applicable reporting period ends.
- Customer shall provide responses to Data Requests with requisite Data in the format required by TCG and shall ensure the accuracy of the Data provided;
- Customer agrees to return completed Data Request Worksheets and Data Request responses to TCG by the applicable “Data Request Schedule” deadline listed above or otherwise identified by TCG. Failure to submit Completed Data Requests within the allotted period may prevent timely submission of Reports which, in turn, may result in the imposition of penalties, fees and other adverse consequences by government agencies. Customer may receive an extension of the Data submission deadline by providing TCG with written notice and after obtaining TCG’s prior consent;
- TCG shall prepare all reports within the scope of the particular Data Request upon receipt of the completed Data Request Worksheets or Data Request responses.
- TCG shall provide Customer with drafts of Reports for Customer review, confirmation, and officer signature as legally necessary or otherwise deemed prudent in TCG’s sole judgment;
- In the event TCG provides Customer with drafts of Reports for review, confirmation or officer signature, it is bCustomer’s responsibility to take actions requested by TCG in a timely manner;
- Unless Customer is required to or elects to remit Reports directly to the Governmental Agency, TCG will submit all tacitly and expressly approved Reports and confirm submission to Customer in summary format at the time of submission or at the end of the relevant filing period.
Non-routine Data Requests.
Certain reports are out-of-scope of Routine Data Requests. For these reports, TCG will provide Customer with a Non-routine Data Request at least thirty (30) days before the reporting deadline. Customer agrees to return the completed Non-routine Data Request at least seven (7) days before the reporting due date.
Custom Data Requests. Customer agrees to provide Data in the format specified by TCG. TCG may, at its sole discretion, permit Customer to provide Data in a format other than a Data Request Worksheet. However, all data provided by Customer must:
- Consist of a single Worksheet for each reporting period;
- Be provided in a machine-readable file format (for example: CSV, Excel, JSON, XML);
- Contain data presented in an identical format each reporting period.
TCG reserves the right to refuse acceptance of any Data Request file. All work necessary to conform TCG’s system to Customer’s Custom Data Request format may be billed outside the scope of Managed Corporate Compliance Reporting Services.
Accuracy of Data. Customer is solely responsible for the accuracy of the Data provided in response to TCG’s Data Requests and in Data Request Worksheets submitted to TCG. TCG does not audit, validate, or verify customer Data. Verification, confirmation, or reconciliation of Data provided to TCG is out of scope of any Fixed-Fee service.
Customer’s Responsibility to Pay Expedite Fees for Late-Submitted Data
Expedited Filing Fees. Completed Data Request Worksheets and responses, and if applicable, Escrow funds necessary to submit corporate reports must be delivered to TCG within the applicable “Data Request Schedule” outlined above, unless Customer provides notice and obtains TCG’s prior consent to an extension of the Data submission deadline.
Late Data Policy and Expedite Fees
Customers failing to submit complete, accurate, and timely. Data shall be subject to TCG’s Late Data Policy, including per Report Expedite Fees, as established in the applicable Service Schedule.
Customer’s Responsibility to pay Expenses, Governmental, Administrative and Other Fees
Expenses and Governmental Fees. Unless an adequate Escrow Account has been established with TCG, Customer bears sole responsibility for payment of all expenses, governmental fees, and shipping costs, including certified mail, USPS, UPS, FedEx, or other courier charges. Customers electing to pay invoices electronically, via PayPal or credit card, will receive paper invoices containing expenses and fees incurred by TCG in the prior billing cycle.
Administrative Fees. Prices for Services do not include administrative fees such as copying, postage for First Class U.S. mail, telephone calls, facsimiles and other similar expenses. Administrative fees are recovered through a five percent (5%) Administrative Fee. Absent Customer instructions to the contrary, Reports that must be filed on an expedited basis will be sent via overnight mail and billed directly to Customer.
Late Fees and Penalties. Customer is solely responsible for payment of any late fees and penalties unless the cause of the late fees or penalties is solely and directly attributable to TCG’s negligence, as determined solely by TCG’s reasonable judgment.
If TCG determines that a Customer was assessed late fees or penalties due to TCG’s negligence, TCG shall take corrective actions for no additional charge and may, in its sole and exclusive judgment, issue fair and reasonable credits or refunds.
Customer’s Responsibility to Forward Mail and Correspondence from Governmental Agencies
Unless Customer identifies TCG as the primary point of contact with a Governmental Agency, Customer is responsible for forwarding to TCG all letters, notices, e-mails and other correspondence (“Communications”) received from any Governmental Agencies or third parties related to corporate reporting. Customer agrees to forward all Communications within seven (7) calendar days of receipt. TCG is not responsible for omissions, errors, and missed deadlines resulting from Customer’s failure to timely forward Communications.
Customer Responsibility for Administrative Costs and Expenses
Customer is responsible for all Administrative Cost Fees, Advanced Costs and client-approved out-of-pocket expenses incurred in connection with the Services.
Administrative Costs include photocopying, faxing, scanning, telephone services, conference calling, and applicable credit card or bank processing fees. Administrative Cost Fees are calculated at five percent (5%) of the amount or amounts billed and are invoiced at the time Fixed-Fee services are charged or during each billing cycle in which usage-based, consulting services are provided.
Advanced Costs are those costs paid to third parties by TCG on behalf of its customers such as, but not limited to, registered agent fees, travel expenses, filing fees, computer research costs, and expense reimbursement costs. Customer agrees to reimburse all Advanced Costs unless otherwise agreed prior to such costs being incurred. Advanced Costs are included in the billing statement sent to Customer in the month in which such amounts are advanced or incurred.
Mailing Costs include regular postage, certified and return receipt fees, overnight or 2 day shipping fees and the like. Customer will be billed for these costs in the applicable Service invoice.
TCG customarily does not advance anything other than de minimis expenses on behalf of our customers and has no obligation to advance any of the foregoing costs unless otherwise agreed in connection with specific engagements. TCG may require that Customer arrange in advance to fund such costs by means of escrow deposit, direct arrangements with the third-party vendors, or some combination of these methods.
In certain instances, TCG may serve as a fund transfer agent between Governmental Agencies and Customer, and shall remit fees and taxes to the appropriate authorities on Customer’s behalf. To facilitate timely remittance of fees and taxes, TCG requires that Customer establish and timely funding suitable escrow accounts. Customer understands and acknowledges that TCG will not remit any payment to a Government Agency unless the appropriate escrow account or accounts are funded according to TCG’s instructions. Customer accepts all responsibility and liability for failure to remit any fee or tax.
Escrow Account Fulfillment
Customer must fund an Escrow Account with TCG to accelerate report submission and fee payment. As part of establishing an Escrow Account, Customer agrees to provide TCG with funds necessary to remit payment for Customer’s obligations and to replenish the Escrow Account upon request of, and within the funding deadlines set by, TCG.
TCG will use money deposited in the Escrow Account to pay fees imposed by the particular Governmental Agency. Nothing in this Agreement mandates that TCG must make payment for fees out of the Escrow Account. TCG retains the authority to request direct payment from Customer for fees and expenses at its sole discretion. TCG is under no obligation to remit Reports, Returns or pay fees if the amount in the Escrow Account is insufficient to cover required payment. Customer agrees to hold TCG harmless for failure to file Reports or Returns and remit payments to Government Agencies if the amount in the required Escrow Account is insufficient or replenishment is not timely.
Consequences of Failure to Fund Escrow
Customer understands and agrees that timely funding of the Escrow is necessary for TCG to provide Services in accordance with these Terms. Failure to timely fund Escrow will likely result in delays, delinquencies and other non-compliance with Customer obligations to Government Agencies. Customer agrees that failure to adequately fund Escrow may result in liabilities, fines, and penalties for which it is solely responsible. In the event of failure to fund Escrow, Customer waives any rights it may have against TCG. Timely funding is non-negotiable.
Billing; Payment Obligations
Customer authorizes TCG to collect all applicable charges through Customer’s selected payment method. Customer’s Credit Card authorization will remain valid until thirty (30) days after termination of TCG’s charging authority. Service charges are billed in advance or on a monthly basis depending on the nature of the services provided unless otherwise agreed to in the Service Order.
Advance Billing: Work will not be performed until payment is received.
- All one-time Fixed-Fee Services, such as registration and licensing, and associated costs, are billed in advance in accordance with customer’s chosen payment method.
- All Subscription-Based and recurring Fixed-Fee Services, such as monthly reporting, and associated costs, are billed in advance of the month in which services are provided.
Unless otherwise agreed upon by Customer and TCG, Consulting Services and Out-of-Scope services provided on a stand-alone basis or as part of Subscription-Based or Fixed-Fee Service, and associated costs, shall be billed at the end of the month in which such usage-based services are provided or in which costs are incurred. Consulting Services and any Out-of-Scope services are billed monthly on a time and materials basis and are due upon receipt.
TCG will deliver invoices electronically to Customer’s email address or via U.S. Mail to the Customer’s billing address. All invoices are considered received upon delivery. Customer is responsible for paying all invoices, in full, upon receipt. All costs, fees, charges, and expenses billed are considered delinquent after thirty (30) days following delivery. Delinquent amounts are subject to a monthly one and a half percent (1.5%) late payment fee.
Payment for Invoiced Billing. All invoiced payments shall be payable to TCG
by check or ACH Payment as follows:
PAY BY CHECK:
PAY BY ACH:
1420 Spring Hill Rd., Suite 401
Tysons, Virginia 22102
Bank Name: SunTrust Bank
Account Name: The Commpliance Group
Account #: 1000181508226
Routing/ABA #: 061000104
SWIFT Code: SNTRUS3A
Customer agrees to promptly notify TCG whenever Customer’s contact or billing information changes (including, for example, name, address, e-mail address, telephone number, and credit/debit card number and expiration date or other payment method information). Customer authorizes TCG to send notices and information by any means, including via email, regarding Services. If notices are sent by TCG to the last e-mail address provided by Customer, Customer agrees that TCG has provided sufficient e-mail notice and any right to assert failure of notice is waived.
Customer agrees to waive its rights under Regulation E to receive ten (10) days advance notice from TCG regarding the amount that it will debit from Customer’s account. While TCG may send Customer messages about billing from time to time, TCG is not obligated to do so. TCG may change or cease its messages at any time without notice.
Customer must notify TCG of its intent to dispute any charges on the invoice within thirty (30) days after an invoice is mailed or delivered electronically. Failure to timely dispute constitutes Customer’s waiver of any right to contest the charges.
Term; Termination and Suspension
Term. This Agreement starts on the Effective Date, and continues on a year-to-year basis until terminated by either Party by written notice more than thirty (30) days prior to expiration of the then existing term.
Termination of Agreement for Cause.
Termination for Cause by TCG. This Agreement, including all rights provided hereunder, may be terminated by TCG for cause, in its sole discretion, immediately upon notice to Customer:
(i) if Customer is in breach or default., or commits an incurable breach of the terms or conditions of this Agreement;
(ii) if Customer fails to cure a curable breach of this Agreement within thirty (30) days of being provided with notice of such breach or ten (10) days for Customer’s failure to render payment;
(iii) if Customer provides false or deceptive information or engages in fraudulent or harassing activities when ordering, using or paying for services;
(iv) if TCG reasonably believes that performing such services could result in violation of applicable law, regulations, or standards, or in a conflict of interest, or to suffer reputational damage;
(v) in the event of violation of any license agreement or sub-contracting agreement with TCG or its Strategic Partners; or
(vi) in the event Customer fails to comply with applicable laws or regulations, and Customer’s non-compliance prevents TCG’s performance under the Agreement.
Termination of this Agreement for cause by TCG will not require any kind of a refund to Customer and will not affect any remedies available to TCG by law or in equity.
Termination for Cause by Customer. Customer may terminate this
Agreement for cause in by providing TCG with written notice specifying a material failure to provide the service specified under this Agreement, which affords TCG a reasonable opportunity to cure within fifteen (15) days from receipt of notice (“Cure Period”), and which TCG fails to cure within the 15-day Cure Period. TCG’s material failure does not include a failure resulting from Customer actions or Force Majeure.
Early Termination for Convenience. Either Party may terminate this Agreement by providing the other Party sixty (60) days’ written notice from the end date of the initial term. If Customer terminates the Agreement prior to the end of the then existing term, all prepaid payments are forfeit and Customer accepts early termination fees as set forth below.
Early Termination Fees (ETFs). As damages to TCG from early termination of the contracted Services term would be difficult or impossible to determine, Customer and TCG agree and stipulate that early termination fees (ETFs) Customer is responsible for shall be equal to 50% of the amount of Fixed-Fees and/or Subscription-Based Fees owed to TCG for the remaining Term. Customer agrees that the ETFs are not a penalty.
Suspension of Agreement.
Suspension. In addition to any other termination rights of TCG under this Agreement, TCG may suspend or terminate Customer’s access to and use of any online account without notice:
(a) in the event TCG determines in its sole judgment that Customer (including any other person or entity acting through or on behalf of Customer) has had or attempted to have damaged, harmed or misused, licensed software, TCG’s server, network or other systems; or
(b) as necessary or appropriate to comply with any law, regulation, court order, or other governmental request or order, or otherwise protect TCG from potential legal liability or harm to its business.
TCG will use commercially reasonable efforts to notify Customer of the reason for such suspension or termination as soon as reasonably practicable unless such action is due to subsection (a) hereof. In the event of a suspension other than due to subsection (a) hereof, TCG will promptly restore Customer’s access to the online account as soon as the event giving rise to the suspension has been resolved, as determined in TCG’s sole discretion. Nothing contained in this Agreement shall be construed to limit TCG’s actions or remedies, or act as a waiver of TCG’s rights in any way with respect to any of the foregoing activities. TCG shall not be held liable by Customer for any loss or damages incurred by Customer as a result of any termination or suspension of access to or use of the Risk Monitoring & Management Service as set forth in this Agreement.
Suspension and Termination Due to Non-Payment. Customers in default of the payment obligations of this Agreement may have some or all services suspended, at TCG’s sole discretion, if such default is not cured within ten (10) days of Customer’s receipt of written notice of the default. Services subject to suspension under this term include third-party services provided by affiliates or Strategic Partners, subject to the specific terms and conditions of Customer’s engagement therewith. In addition, delinquent accounts may be terminated if such default is not cured within ten (10) days of Customer’s receipt of written notice of the same.
In the event of service suspension due to non-payment, Customer accepts sole responsibility for Customer’s continued compliance with applicable regulatory and tax filing requirements pending resolution. Upon payment of any Past Due balance and removal of the Service suspension, TCG will determine whether any obligations were neglected during the period of suspension. If TCG is required to take curative actions or expedite delivery of Services due to Customer failure to timely remit payment, TCG will take all reasonably necessary curative actions to avoid non-compliance with applicable requirements. All curative actions are performed outside the scope of any Fixed-Fee services and shall be billed at Usage-Based consulting rates according to the applicable Service Schedule.
Effect of Expiration, Suspension or Termination of Agreement.
Upon any expiration, suspension or termination of this Agreement, all rights granted to Customer hereunder immediately terminate and TCG will have the right to immediately and indefinitely terminate Customer’s access to, and use of, any licensed software or databases.
In the event of suspension or termination of this Agreement by TCG, Customer will be liable for payment for all services provided up to the date of termination, whether or not invoiced by the termination date, as well as any expenses. Customer agrees to
remain liable, in the event of termination or suspension, for all charges under this Agreement and applicable Service Schedules and all costs of collection including without limitation collection agency fees, reasonable attorneys’ fees, and arbitration or court costs.
For purposes of this Agreement, “Confidential Information” means, with respect to either Party, any and all information relating directly or indirectly to the present or potential business operations or financial condition of the disclosing Party. This information includes but is not limited to revenue reports, pricing guides, marketing plans, customer and supplier lists, service data, and any other information reasonably presumed to be proprietary or confidential in nature. Customer’s Confidential Information also includes any user account and password information on file with TCG.
Confidential Information shall not include information that:
(i) is or becomes part of the public domain;
(ii) was lawfully received from a third party free of any obligation of confidentiality to such third party; or,
(iii) is legally required to be disclosed.
Each Party agrees that during the term of this Agreement and thereafter:
- It shall provide, at a minimum, the same care to avoid disclosure or unauthorized use of Confidential Information as is provided to its own similar information, but in no event less than a reasonable standard of care; and
- It will not disclose Confidential Information belonging to the other Party to any third party, other than its employees and consultants reasonably requiring such Confidential Information for purposes of this Agreement who are obligated to non-disclosure and limited use at least as stringent as those contained herein, without the express prior written consent of the disclosing Party.
Customer and TCG each agree that their officers, employees, and agents shall maintain all information disclosed by the other Party in connection with this Agreement in confidence and will not disclose any such information to anyone else, nor use it for their own benefit or the benefit of others without the written or oral consent of the other Party; provided, however, that either Party shall have the right to use any such information for its own necessary internal purpose consistent with the terms of this Agreement and while this Agreement is in effect.
On termination of this Agreement, for whatever reason, the receiving Party shall return all Confidential Information to the disclosing Party promptly, if so explicitly requested.
Submission of Information
Customer agrees to supply all information, data, and responses to TCG requests (“Customer Information”) necessary for TCG to provide Services under this Agreement and any applicable Service Schedules. Cooperation and timeliness in providing thorough and accurate Customer Information is necessary for TCG to complete and file requisite licenses, registrations, regulatory reports, returns, filings and remittances (“Applications and/or Reports”) in an accurate and timely manner. Customer is responsible for the accuracy and completeness of all information used by TCG to prepare Applications and/or Reports. Customer recognizes that TCG’s Services rely on Customer providing complete and accurate information.
TCG assumes no liability for Services performed in reliance on information submitted by Customer. TCG shall have no obligation to audit or review Customer Information or documents for accuracy or completeness. Although TCG disclaims any obligation or duty to ensure accuracy or completeness of Customer Information or Applications and/or Reports, TCG shall use its reasonable efforts to ensure Customer understands its regulatory and tax compliance obligations based on information provided by Customer. TCG may, at its own discretion, proofread data submitted by Customer to correct common, reasonably identifiable mistakes. TCG, however, has no obligation to revise or correct information beyond mere proofreading.
Account and Licensing Information
Customer agrees to provide a list of all requisite licenses, registrations, business authorizations and approvals necessary to conduct business in a particular jurisdiction (e.g., FCC 499 registration, a 214 license, and state telecommunications licenses and Secretary of State (“SOS”) authorizations) (collectively, “Licensure”) which it has secured prior to obtaining Managed Compliance Reporting Services from TCG related to that specific jurisdiction. Customer further agrees to provide proof of Licensure upon request. TCG disclaims responsibility for fulfilling Customer’s compliance obligations within the Scope of the Agreement if Customer is unable to provide proof of Licensure prior to the initiation of Services.
Many Regulatory and SOS Reports can be filed online through a secure web portal using a pre-determined username and password. Customer agrees to provide the username and password for all electronic filings covered under the scope of the Services within five (5) days of a reporting deadline, and acknowledges that failure to provide this information may result in untimely filing of reports.
TCG may retain user account and password information on file. Customer authorizes TCG, its staff, and third-party contractors retained by TCG, acting as an agent of Customer, to use such account information to file documents on Customer’s
behalf. Customer and TCG shall notify each other of any changes to username and password information within five (5) days of a reporting deadline.
TCG retains copies of final Applications and/or Reports (hereafter, “Documents”) filed with Governmental Agencies by TCG, and final drafts of Documents that are sent to Customer for filing with a Governmental Agency by the Customer for a period of five (5) years. Unless specified in writing, TCG has no obligation to retain duplicate copies of any Document. TCG may retain basic Customer Information, such as general contact information, account user names and passwords, and registration identification numbers, on file to expedite preparation of filings and reports. TCG does not guarantee that Customer Information remains current or accurate.
Electronic Signatures and Contracts
Customer agrees that an electronic signature is as valid as a non-electronic signature. Customer acknowledges that its electronic signature constitutes its agreement to the same and intent to be bound by, and to pay for, such services agreed to herein. EXCEPT WHERE PROHIBITED BY LAW, CUSTOMER ACKNOWLEDGES THAT TCG, ACTING AS AN AGENT OF CUSTOMER FOR COMPLIANCE REPORTING, HAS THE AUTHORITY TO BIND CUSTOMER THROUGH THE USE OF ELECTRONIC SIGNATURES.
AMENDMENTS TO THIS AGREEMENT
These Terms may be modified at any time with reasonable notice to Customer. Notwithstanding the foregoing, Customer has the right to cancel the Agreement within sixty (60) days after a fee increase. Customer understands and agrees that modifications to the Agreement may be necessary due to any of the following conditions:
(i) subsequent addition of services which are outside the scope of services required at the time of Customer’s acceptance of this Agreement;
(ii) expansion of Customer’s licenses and authorities, new or additional licenses or authorizations, thereby adding to the jurisdictions covered; or
(iii) to ensure Customer’s good standing through compliance with new or expanded federal and/or state regulatory and taxing reporting requirements.
TCG does not claim a proprietary right in any materials delivered by Customer to TCG or any report or Document prepared by TCG for filing on behalf of the Customer. All such materials remain exclusive property of the Customer. Customer acknowledges that all other materials, including but not limited to the AccuCompliance Platform, programs, processes and techniques used or prepared by TCG, in connection with the work performed or Services rendered by it hereunder, shall at all times be and remain exclusive property of TCG and are confidential and proprietary in all circumstances unless otherwise noted in writing.
Other than payment for services rendered where such payment is not impeded by an event covered by this paragraph, neither party shall be liable for any failure or delay in performing an obligation or service under these Terms and Conditions that is due to causes beyond its reasonable control, such as: natural catastrophes, governmental acts or omissions, laws or regulations, labor strikes or difficulties, computer viruses, war, domestic or international acts of terrorism, transportation stoppages or slowdowns or the inability to procure content, information, service, carriers, product, software, or demonstrations, that flow from Force Majeure events. If any of these causes continue to prevent or delay performance for more than thirty (30) days, Customer may terminate these Terms and Conditions or any subscriptions purchased hereunder, effective immediately, upon notice to TCG.
LIMITATION OF LIABILITIES
Limitation of Liability: TCG’s maximum liability for any action arising under this agreement shall be limited to the amount of fees paid by the Customer for the Service from which the claim arose, no matter the terms of the action itself.
Consequential damages: Notwithstanding anything contrary terms of this Agreement, neither Party nor its affiliates shall, under any circumstances, be liable to the other Party or its affiliates for any consequential, incidental, indirect, exemplary, punitive, or special damages of any nature whatsoever, regardless of the form of action, whether in contract or in tort, including negligence, and regardless of whether such party has been advised of the possibility of such damages in advance or whether such damages were reasonably foreseeable. In no event shall TCG be liable for any damages, liabilities, costs, or expenses arising from or in connection with the acts, omissions, or delays of any third party; provided, however, that TCG shall make reasonable efforts to obtain good workmanlike performance by such third parties on a timely and commercially reasonable basis. Remedies under this Agreement are exclusive and limited to those expressly described herein.
Disclaimer of warranties: Except as otherwise provided herein, there are no warranties, express or implied, as to the services or any part thereof, related products, equipment, software or documentation. TCG specifically disclaims any and all implied warranties, including, but not limited to; warranties of merchantability, fitness for a particular purpose, and/or title or non-infringement of third-party rights.
Indemnification: Customer agrees to indemnify and hold TCG, its agents, subsidiaries, affiliates, directors, officers, consultants and employees, harmless from any claim or demand, including attorneys’ fees, made by any third party due to, or arising out of, use of any of the Services provided by TCG, the violation of these Terms and Conditions by Customer, the infringement of any intellectual property by Customer, or such violation or infringement by another user of the Services using Customer’s computer and/or password.
GOVERNING LAW; JURISDICTION; WAIVERS
This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, excluding its conflict of law provisions. Customer and TCG agree to submit to the exclusive jurisdiction of the courts of Virginia and mutually and unconditionally waive trial by jury and any right to proceed as lead plaintiff, class representative, or other representative capacity for any class action proceedings arising out of, or relating to, this Agreement.
The prevailing Party in any such action shall be entitled to the recovery of its reasonable attorneys’ fees and litigation costs.
Compliance with Law. Each Party agrees to comply with all applicable laws in performance of its obligations under the Agreement.
Freedom to Contract. The Parties acknowledge that they are both free to enter into this Agreement and in no way restrained from doing so by any governmental or regulatory agency decrees, opinions, rules, regulations or decisions.
Independent Contractor. TCG provides Service to Customer as an independent contractor. This Agreement does not create an employer-employee relationship, association, joint venture, partnership, or other form of legal entity or business enterprise between the Parties, their agents, employees, or Affiliates.
Conflicts Provision. If a conflict exists among provisions within the Agreement, specific terms will control over general provisions, and negotiated, added, or attached terms, conditions or pricing will control over standardized, posted or non-negotiated terms, conditions and pricing, to the extent permitted by law.
All notices shall be written in English and shall be sent via electronic mail (e-mail), hand delivery, confirmed fax or overnight courier to the Parties at their business addresses, in the sole discretion of TCG. Notices shall be regarded as having been given:
(i) when delivered, if sent by hand;
(ii) pm the business day following the date of confirmed transmission by the machine sending the transmission, if sent by fax;
(iii) on the date of confirmed delivery, if sent by overnight courier; or
(iv) on the date sent, if sent by e-mail.
Customer may not assign any rights or obligations under the Agreement without TCG’s prior written consent except to an affiliate in an internal reorganization.
Interpretation and Severability. If any provision of these Terms and Conditions is held by a court of competent jurisdiction to be contrary to law, then such provision shall be construed, as nearly as possible, to reflect the intentions of the Parties with the other provisions remaining in full force and effect.
Waiver of Subrogation. The Parties mutually agree on behalf of themselves and their insurers to waive any claim or rights of subrogation against each other.
No waiver or failure to exercise any option, right, or privilege under the terms of this Agreement on any occasion or occasions shall be construed to be a waiver of the same or any other option, right or privilege on any other occasion.
The covenants and Agreements contained in this Agreement with respect to payment of amounts due, confidentiality, liability, indemnification, governing law, jurisdiction and waiver shall survive termination of this Agreement, regardless of the reason for termination. The rights and obligations under this Agreement shall survive any merger or sale of either Party and shall be binding upon the successors and permitted assigns of each Party.
Titles and headings used herein are inserted for convenience only and are not intended to affect the meaning or interpretation of this Agreement.
Each signatory to this Agreement hereby represents and warrants that said signatory has the authority to execute this Agreement on behalf of the Party to this Agreement for whom the signatory is executing this Agreement.