Accounting & Tax Terms and Conditions

These Terms and Conditions are part of the Accounting and Tax Service Agreement (“Agreement”) between Guidant Financial Group, Inc. (“Guidant,” “we,” “us,” or “our”), and the person or entity for which we are providing services (“Employer” or “you”). These Terms and Conditions are applicable to all persons who use the Services in their company’s capacity or in an individual capacity, including authorized users representing the Employer, its employees, or other persons using or accessing the Services. By signing the Agreement, you, effective as of the date of such action, agree to be bound by the Agreement and the Terms and Conditions.

1. Fees. Fees are stated on your Service Agreement(s) and can be found here: https://www.guidantfinancial.com/business-services/accounting-tax/. Employer agrees to pay Guidant the fees set forth in the Accounting and Tax Services and Fees. Subscription fees to be charged on the first day of the following month of signup and can include prorated charges for the first month that services took place. For annual deliverables, including, but not limited to, tax returns, additional fees may be charged dependent on the timing that the subscription services began. We review pricing annually to consider cost increases, such as inflation. We may change the amount and nature of our fees at any time by providing written notice to you. You will be notified of any change to existing fees at least thirty (30) days before the fee change goes into effect. If a fee increase or change to this Agreement is not acceptable to you, you may cancel the Services as provided herein prior to the time when such fee increase or change to this Agreement takes effect. Your continued use of the Services beyond the cancellation window constitutes agreement to those changes. If Guidant is unable to collect fees due because of insufficient funds in your bank account or for any other reason, you must pay the amount due immediately upon demand, plus any applicable processing fees, bank fees, or charges for return items, plus interest at the lesser of 18% per annum or the maximum rate permitted by law, plus attorneys’ fees and other costs of collection as permitted by law.
2. Change of Service Plans. Before you may begin to use the Services, you will be asked to select a Service Plan from those detailed at https://www.guidantfinancial.com/business-services/accounting-tax/. You may request to change your Service Plan by emailing [email protected]. If you choose to upgrade from your current Service Plan (the “Current Plan”) to a more expensive Service Plan (the “New Upgrade Plan”), then such upgrade will promptly go into effect, and you will begin receiving access to the features and Services available under the New Upgrade Plan at the time of such upgrade. The fee schedule for the New Upgrade Plan will be applied to your Service Plan charge for the calendar month following the month in which you upgrade. For the month in which the upgrade becomes effective, billing will reflect a prorated charge for the upgrade. If you choose to downgrade from you Current Plan to a less expensive Service Plan (the “New Downgrade Plan”), then the downgrade will not go into effect until the beginning of the calendar month following the calendar month in which you elected to downgrade (the “Downgrade Election Month”). You will still receive access to the features and Services available with your Current Plan until the end of the Downgrade Election Month. After the Downgrade Election Month, you will lose access to some of the features and Services available with your Current Plan and will only have access to the features and Services available under your New Downgrade Plan. The fee schedule for your Current Plan will be applied to your Service Plan charge for the Downgrade Election Month, and the fee schedule for the New Downgrade Plan will be applied to your Service Plan charge for the calendar month following the Downgrade Election Month and for each calendar month thereafter for so long as you are subscribed to the New Downgrade Plan.
3. Termination. Guidant may immediately suspend or restrict your Account; suspend or restrict your access to any Services; block your ability to use any particular feature of a Service; or immediately terminate the Services and this Agreement, in each case with or without notice to you, in the event that: (i) Guidant has any reason to suspect or believe that you may be in violation of this Agreement; (ii) Guidant determines that your actions are likely to cause legal liability or materially negative impact to Guidant; (iii) Guidant believes that you have misrepresented any data or information or that you have engaged in fraudulent or deceptive practices or illegal activities; (iv) Guidant has determined that you are behind in payment of fees for the Services and you have not cured such non-payment within five (5) days of Guidant providing you with notice of the non-payment; or (v) you file a petition under the U.S. Bankruptcy Code or a similar state or federal law, or a petition under the U.S. Bankruptcy Code or a similar state or federal law is filed against you. Furthermore, while Guidant strives to support a multitude of business and organization types, in certain unique situations, if Guidant cannot support the accounting and tax needs of your business or organization type, Guidant may immediately terminate the Services and this Agreement upon written notice to you.
   1. The termination of any of the Services or this Agreement will not affect your or Guidant’s rights with respect to transactions which occurred before termination. Guidant will have no liability for any costs, losses, damages, penalties, fines, expenses, or liabilities arising out of or related to Guidant’s termination of this Agreement. Sections 1 (to the extent that there are any unpaid fees for services rendered as of the time of termination of this Agreement), 4, 5, 6, 8, 9, 12, 16, 19, 21, 22 of this Agreement, and any sections of the Service Terms which by their nature should survive, will survive and remain in effect even if this Agreement is terminated, cancelled, or rescinded.
   2. Upon termination of any of the Service(s) and/or termination of this Agreement, your right to access and use such terminated Services(s) will automatically terminate after the notice period has lapsed. When termination occurs at the end of a 30-day notice period, billing will be turned off at the end of the calendar month in which the notice period ends.
4. Indemnity. You will defend and unconditionally indemnify Guidant and our affiliates, owners, officers, employees and agents and hold us and them harmless against all liability, costs, expenses, interest, penalties, claims, losses and damages (including but not limited to reasonable attorneys’ fees and other professional fees) of whatever nature resulting directly or indirectly from: (i) your breach of any obligation, representation or warranty of this Agreement; (ii) your actual or alleged wrongful, intentional or negligent act or omission; (iii) you or your agent’s, affiliate’s, or employee’s actual or alleged violation of applicable requirements, anti- discrimination or harassment requirements, pension or benefits requirements, or any other federal, state or local law, regulation, rule, ruling, ordinance, resolution, judgment, order, or act;(iv) the conduct of your business; (v) any claim based on your use of any third party software, process, patent, or any other form of intellectual property; (vi) the disallowance of tax deductions due to inadequate documentation; (vii) any claim arising from the use of tax returns for any purpose other than filing with the IRS and state and local tax authorities regardless of the nature of the claim, including the negligence of any party (viii) any claim arising from the use of financial statements or reports created by Guidant for purposes other than internal use. The provisions of this paragraph will survive the termination of this Agreement.
5. Arbitration of Claims. By entering this Agreement, you are acknowledging that you have read and understand the Terms of this Agreement and that you agree to be bound by the arbitration provision and class action waiver.Notwithstanding any other provision in this Agreement, and except as otherwise set forth in this section, if either you or Guidant have any dispute, controversy, or claim, whether founded in contract, tort, statutory, or common law, concerning, arising out of, or relating to this Agreement or the Services, including any claim regarding the applicability, interpretation, scope, or validity of this arbitration clause and/or this Agreement (each of the foregoing, a “Legal Claim”) that cannot be resolved directly between you and Guidant, then such Legal Claim will be settled by individual (not class or class-wide), confidential, binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with the then-current Commercial Arbitration Rules and Mediation Procedures of the AAA (the “AAA Rules”), including any expedited procedures. To initiate an arbitration proceeding, an arbitration claim must be submitted by the claimant (the “Claimant”) to the AAA, and a written Demand for Arbitration must be provided to the other party (the “Opposing Party”), pursuant to the AAA Rules. Arbitration hearings will be held in Seattle, Washington or any other location that is mutually agreed upon by you and Guidant. A single arbitrator will be mutually selected by Guidant and Employer and shall be (i) a practicing attorney licensed to practice law in Washington or a retired judge; and (ii) selected from the arbitrators on the AAA’s roster of commercial dispute arbitrators who have a background in accounting and tax (or if there are no such arbitrators, then from the arbitrators on the AAA’s roster of commercial dispute arbitrators) (collectively, the “Arbitrator Requirements”). If Guidant and Employer cannot mutually agree upon an arbitrator within ten (10) days of the Opposing Party’s receipt of the Demand for Arbitration from the Claimant, then the AAA shall appoint a single arbitrator that satisfies the Arbitrator Requirements. The arbitrator will follow the law and will give effect to any applicable statutes of limitation. The prevailing party shall be entitled to an award of the costs and expenses of the arbitration, including reasonable attorneys’ fees and expert witness fees. The award rendered by the arbitrator shall be final and binding upon you and Guidant. A judgment on the award may be entered and enforced in any court of competent jurisdiction. Guidant may, in its sole discretion, commence an action in any state or federal court of competent jurisdiction within King County, Washington, for any monetary amounts that you owe to Guidant (each, an “Action”). You hereby waive any objection to jurisdiction or venue, or any defense claiming lack of jurisdiction or improper venue, in any Action brought by Guidant in such courts.You and Guidant agree and acknowledge that this Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act (Title 9 of the United States Code) shall govern the interpretation, enforcement, and proceedings pursuant to the arbitration clause in this Agreement. EMPLOYER FURTHER ACKNOWLEDGES, UNDERSTANDS, AND AGREES THAT YOU AND GUIDANT ARE EACH WAIVING THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY AS TO DISPUTES HEREUNDER AND THAT EMPLOYER IS WAIVING ITS RIGHT TO PARTICIPATE IN ANY CLASS ACTION PROCEEDING ARISING FROM THIS AGREEMENT.
6. Exclusion of Other Claims. Except as expressly provided in this Agreement, neither party will be required to defend, indemnify or hold the other party harmless from or against any claim whatsoever. Without limiting the generality of the foregoing, we have no liability for goods or services provided to you by anyone other than Guidant and as to Guidant our liability is limited as stated herein.
7. Representations and Warranties. Each party represents and warrants to the other that (i) it is duly organized and is validly existing in good standing under the laws of the jurisdiction in which it was organized, (ii) it has full power and authority to enter into and perform its obligations under this Agreement, (iii) it has the right to disclose all of the information disclosed to the other party hereunder, (iv) neither the execution, delivery or performance of this Agreement conflicts or will conflict with or result in a breach of or default under any agreement to which it is a party, (v) this Agreement constitutes a binding obligation of such party and is fully enforceable in accordance with its terms, and (vi) it will at all times comply with all applicable federal, state and local laws and regulations.
8. Limitation of Warranties. We warrant that we will perform our services required under this Agreement in a good and workmanlike manner. Our only obligation under this warranty is to perform our services in a timely fashion until they are performed in a good and workmanlike manner. We make no warranty of any type as to any software program or other intellectual property licensed by you from us or third parties. We hereby assign any third-party warranties regarding such programs to you, as your interest appears, to the extent that we are able to do so. We make no warranty or representation as to goods or services supplied to you by anyone other than Guidant and as to Guidant, our warranties are limited as stated herein. We make no warranties or representations and give no assurances or guarantees as to the quality, fitness for any particular purpose, availability, performance, functionality, accuracy or completeness of any electronic media we use, including, but not limited to, email and any client portals used to submit information to us. Nor do we warrant or represent or give any assurance or guarantee that any Guidant client portals or email are free from viruses or interception of any kind. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, WE MAKE NO WARRANTIES OF ANY TYPE, EITHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, WITH RESPECT TO ANYTHING RELATED TO THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE MAKE NO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
9. Limitation of Liability and Remedies. Your rights and remedies herein are exclusive and in lieu of all other rights and remedies at law or in equity. Our aggregate liability to you for any and all causes whatsoever, regardless of the form of action, whether arising in contract (including but not limited to indemnity, warranty and all other types of claims under this Agreement and any other agreement) or tort (including but not limited to strict liability and negligence), will in no event exceed the lesser of: (a) your actual direct damages; or (b) an amount equal to the total aggregate fees you have paid to us under this Agreement in the 6 months preceding the claim. We have no liability for damages caused by our processing of incorrect, incomplete, inconsistent or fraudulent information provided by you, or your employees, regardless of whether you authorized such information to be provided to us. In addition, Guidant will have no liability for damages caused by delayed transmission of information from you to Guidant of information necessary to provide Services. This paragraph will not, however, limit our liability for our own gross negligence or willful misconduct. In no event will we be liable for any special, incidental, indirect, consequential or exemplary damages or lost profits, regardless of whether we were advised of the possibility thereof and regardless of whether any limited remedy herein fails of its essential purpose. This paragraph will survive the termination of this Agreement.
10. Use of Data. We will not publish or sell personally identifiable data without your express permission. We reserve the right to use any data and information provided by you for internal quality control and development as necessary for supporting the Services, and as permitted by applicable law. In addition, we reserve the right to freely use, sell, and distribute all data you provide from which we have removed personally identifiable information as permitted by applicable law. Do not enter data or other information into our systems if you do not want your data being used in this manner or contributed to our aggregated data base.
11. Relationship of the Parties. The parties will have the relationship of independent contractors with respect to each other. This Agreement does not create the relationship of principal and agent, employer and employee, or of partnership or joint venture between the parties or any other persons.
12. Intellectual Property. Employer acknowledges and agrees that all computer hardware and software, and other intellectual property, including, but not limited to, all computer programs, source code(s), web designs and other property used, leased, licensed, or owned by Guidant, or any other application, program or process used by Guidant, including, but not limited to the platform used to provide the Services and the Software (the “Company Property”), are confidential and the sole property of Guidant. Employer acknowledges and understands that it may have been granted a limited license to use the Application and Software and related programs and databases provided by Guidant, and that this license is exclusive to Employer and the license will terminate when this Agreement terminates. Employer agrees not to copy, distribute, provide, lend or reproduce any Company Property. Employer also agrees not to recompile, decompile, disassemble, reverse engineer, or make or distribute any other form of, or any derivative work from the Company Property. Employer agrees that it will abide by the terms and conditions of any user license or other agreement relating to the Company Property. Employer agrees to take appropriate action with its employees and agents to comply with its obligations under this Agreement regarding the Company Property. Client shall notify Guidant immediately of any unauthorized use, disclosure, modification, distribution, or copying of any Company Property. In the event that Employer is ever held to be the owner of any of the Company Property by way of the Services provided herein, then Employer hereby irrevocably assigns to Guidant all such rights, title, and interests in and to such Company Property, as well as all changes, modifications, or corrections to the Company Property, and agrees to execute all documents deemed by Guidant to be necessary to implement and confirm the stated words and intent of this Section.
13. Notices. Any notice or other communication under this Agreement shall be in writing and may be delivered by fax or e-mail (with appropriate acknowledgment of receipt), hand delivery or regular United States mail to you at the contact information stated in the Client Requirements Document, or to us at the contact information stated below. Either party may specify a different address by written notice to the other. Notice is deemed effective when received by the party to whom addressed, or when the fax or e-mail is completed as shown by written or electronic receipt. “Timely Notice” as used in this Agreement means that you will forward to us by fax, e-mail or hand delivery as soon as possible and in no event more than 5 business days after you receive a notice from a taxing authority, court or other claimant.
14. Use of Third Parties to Provide Services. Employer agrees that Guidant has full discretion to engage subcontractors, independent contractors, its affiliates, and third-party service providers to perform and assist Guidant with the performance of any and all of its obligations under this Agreement.
15. Authorized Contacts. You may designate to us in writing from time to time one or more individuals to act on your behalf (“Authorized Contacts”). We may rely on your Authorized Contacts to transmit and receive accounting, booking and/or tax information and other information related to our Services under this Agreement, and to make commitments and decisions for you related to this Agreement. You may change your Authorized Contacts by written notice to us. Unless you tell us otherwise, the person who signed the Service Agreement for you is an Authorized Contact. We may refuse to receive information from anyone other than an Authorized Contact. You will designate and authorize either yourself and/or one or more individuals with authority to (i) act on your behalf, (ii) provide information on your behalf, (iii) bind you and/or your business with respect to the Services, and (iv) act in the best interests of the business (each such individual, an “Account Administrator”). In addition, you are solely responsible for (i) following instructions that Guidant provides to you with respect to the Services, whether such instructions are provided via email, phone or otherwise, (ii) maintaining applicable accounts with providers of third-party services utilized by Employer. You are responsible for timely providing Guidant with the information required for Guidant to perform the Services. Employer may furnish such information directly to Guidant or via an Account Administrator or Authorized Contact. Furthermore, you represent and warrant to Guidant that for any information that you share with Guidant, whether directly, via your Account Administrator, or via your Authorized Contact, you will have the authority to share such information. You are responsible for the accuracy and completeness of information provided to Guidant, and you will ensure that any such information, whether provided by you, an Account Administrator, or Authorized Contact, is accurate and complete. Moreover, you are required to maintain the accuracy and completeness of such information on an ongoing basis and will promptly notify Guidant, whether directly or through an Account Administrator or Authorized Contact, of any changes to the information provided to Guidant. You, whether directly or through your Account Administrators or Authorized Contacts, are also obligated to promptly notify Guidant of any third-party notices that you may receive which could affect Guidant’s ability to effectively provide the Services or increase the likelihood that a Claim (as defined below) is brought against Employer or Guidant in connection with the Services, such as notices from the Internal Revenue Service or other government agencies regarding penalties or errors relating to the Services. You give Guidant permission to obtain, verify, and record information that identifies the individual who creates an Account, is the intended user of an Account, or accesses the Services. Guidant may ask for name, address, date of birth, social security number, and other information that will allow Guidant to identify the individual.
16. Confidentiality.
    1. Guidant agrees to use reasonable measures to protect the confidentiality of accounting and tax information you provide us with the same degree of care we would use in protecting our own confidential information. We will use your information for the purposes of providing you with accounting, bookkeeping, tax and other services, including but not limited to, 401(k) plan administration services that Guidant provides at your request, and improving our ability to provide services to you and other clients. We will not disclose your information to third parties except as necessary to carry out services requested by you, or as required by law.
    2. Employer shall protect from disclosure to any third party any information regarding the design and development of all Guidant applications and their associated documentation, as well as: (a) screen layouts and specific data entry fields, and (b) Guidant’s pricing, training and other terms and materials, and will not allow a third party to access such information unless given prior written consent by Guidant.
    3. The obligations in this Section 16 do not apply to information that the receiving party can show: (a) is or becomes publicly known or available without breach of this Agreement; (b) is received by a receiving party from a third party without breach of any obligation of confidentiality; (c) was previously known by the receiving party as shown by its written records; or if disclosure is required by legal process after giving adequate notice of such process to the other party.
17. Entire Agreement. This Agreement, together with these Terms and Conditions, constitute the entire agreement between you and us and supersedes any previous agreements, drafts, negotiations, discussions and representations between the parties with respect to Accounting and Tax Services. You acknowledge and agree that, in entering into this Agreement, you have not relied on any representation which is not contained within the terms of this Agreement. Headings used in this Agreement are merely for the convenience of the parties and are not to be given any weight in the interpretation of this Agreement.
18. Binding Effect. The provisions of this Agreement will be binding upon the parties and their respective heirs, executors, administrators, legal representatives, successors and assigns. No person or entity (including but not limited to your employees and contractors) is to be deemed to be a third-party beneficiary of this Agreement.
19. Severability. If any provision or portion of a provision of this Agreement is held void or unenforceable by a court of competent jurisdiction, the entire remainder of this Agreement will continue in full force and effect, and, if possible, the parties will substitute a like provision which carries out the intent of the parties in a manner which is enforceable.
20. Assignment. We may assign any or all of our rights and delegate any or all of our duties under this Agreement at our sole discretion.
21. Governing Law and Venue. This Agreement and any disagreement or claim arising between the parties is governed by the law of the State of Washington. Any lawsuit you bring against us will be filed in state or federal court in Seattle, Washington.
22. Force Majeure. We have no liability for any delay or default in performing hereunder if such delay or default is caused by conditions beyond our control including, but not limited to natural disasters, severe weather, government restrictions (including the denial of or cancellation of any necessary license, registration or approval), war, insurrection, pandemics or epidemics, failure of one or more suppliers, subcontractors, carriers, or any other cause beyond our reasonable control.
23. Waiver. No waiver hereunder (whether by course of conduct or otherwise) shall be effective unless in writing and no waiver shall be considered a waiver of any other or further default. Our non-enforcement or waiver of any provision under any other agreement(s) with you or any other party, shall not be deemed a waiver of any provision under this Agreement.

FURTHER INQUIRIES

Send your questions to: Guidant Financial c/o Legal Department PO Box 9957 PMB: 88112 Boise, ID 83707-5957 888.418.0374 (fax) 425-289-3200 (office) [email protected]