PROFESSIONAL SERVICES AGREEMENT
KealyWalker Group, LLC — End User Terms of Service
THIS AGREEMENT is entered into by and between KealyWalker Group, LLC, a Delaware limited liability company (“KealyWalker”), and the undersigned end user (“Customer”). KealyWalker and Customer are sometimes referred to individually as a “Party” and collectively as the “Parties.”
WHEREAS, KealyWalker is a provider of federal and state public utility commission (“PUC”) compliance, state PUC registration, telecommunications compliance auditing, local tax registration, state and local tax compliance, tax rating, federal and state corporate and personal property tax preparation, audit and ancillary services (the “Services”); and
WHEREAS, Customer's Services are ordered through, and billed by, an authorized reseller partner of KealyWalker (the “Partner”) pursuant to Customer's separate commercial agreement with the Partner; and
WHEREAS, Customer desires for KealyWalker to perform the Services on Customer's behalf to enable Customer to comply with certain federal, state, and local PUC and department of revenue (“DOR”) requirements;
Accordingly, the Parties, intending to be legally bound, hereby agree as follows:
1. SERVICES
(A) Scope of Services. KealyWalker shall provide Customer with the Services described in the applicable order or statement of work between Customer and the Partner. The Services will be provided in strict compliance with the terms of this Agreement.
(B) Customer Information. Customer acknowledges and understands that the Services are provided by KealyWalker based upon information (“Information”) supplied by Customer, whether directly or through the Partner. KealyWalker does not audit, manipulate, aggregate, validate, or verify Customer's data unless expressly agreed otherwise. Customer is responsible for the accuracy of all Information and for delivering such Information on the timeline required for KealyWalker to perform the Services.
2. USE OF THE SERVICE
(A) Customer Liability. Customer is solely and exclusively liable for the consequences of any instructions Customer may provide KealyWalker, for Customer's failure to properly utilize the Services, and for Customer's failure to supply accurate and timely Information.
(B) Authorized Use. Customer shall use the Services in accordance with such policies as may be established by KealyWalker from time to time. Customer and its representatives shall use the Services only for Customer's own internal business purposes and will not sell or otherwise provide, directly or indirectly, any of the Services or related work product to any third party. Customer shall review all work product for validity and accuracy and promptly notify KealyWalker of any discrepancies.
(C) Notice Forwarding. Customer shall promptly forward, by scanned email to compliance@kealywalker.com, all notices received by Customer regarding the Services, including payment deficiencies, non-filing notices, new filing requirements, and EFT, EDI, or prepayment requirements. KealyWalker will not be responsible for additional penalties or interest related to notices not forwarded within 48 hours of receipt or no more than 7 days from the notice date, whichever is sooner.
3. WARRANTY
Subject to Customer's fulfillment of its obligations hereunder, KealyWalker represents and warrants to Customer that the Services will be performed in accordance with applicable law, including all filing deadlines promulgated thereunder.
OTHER THAN THIS EXPRESS WARRANTY, KEALYWALKER MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SERVICES.
4. TERM AND TERMINATION; DEFAULT; REMEDIES
(A) Term. This Agreement remains in effect for so long as KealyWalker performs Services on Customer's behalf pursuant to Customer's agreement with the Partner.
(B) Termination for Cause. In the event Customer is at any time in breach of any of its obligations hereunder, KealyWalker may, at its sole and absolute discretion, immediately terminate the Services to which such breach is applicable. If the Services are terminated by KealyWalker for cause, the obligations of Customer hereunder shall survive such termination.
5. LIMITATION OF LIABILITY
(A) Filing Services Liability. With respect to liability for filing services only, and provided that Customer has fully complied with its obligations hereunder, KealyWalker's sole liabilities to Customer for claims arising from errors or omissions in filing services shall be to: (i) pay any penalties or similar charges relating to such error or omission; and (ii) furnish a correct report or data and correct any agency filings. Customer assumes responsibility for any and all audits, including costs to defend against audits, penalties, or interest as a result of an audit.
(B) General Liability Cap. KealyWalker's total liability for any claim(s) under this Agreement will not exceed an amount equal to the total fees actually paid by or on behalf of Customer to KealyWalker during the twelve (12) month period immediately preceding the event from which such liability is derived; provided that such liability cap will not apply to claims arising from gross negligence, willful misconduct, or fraud by KealyWalker, or breach by KealyWalker of Section 6 of this Agreement.
(C) No Consequential Damages. In no event will KealyWalker be responsible for special, punitive, indirect, incidental, or consequential damages, even if KealyWalker has been advised of the possibility of such damages. This Section 5 sets forth the full extent of KealyWalker's liability under this Agreement for any cause or action, regardless of its form.
6. LIMITED LICENSE TO USE SERVICES
(A) Grant of License. KealyWalker hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable license to access and use the Services solely for Customer's own internal business purposes and in accordance with the terms hereof. Customer acknowledges and agrees that all Services, work product, methodologies, processes, tools, and deliverables provided by KealyWalker are the sole and exclusive intellectual property of KealyWalker, who retains all copyrights and other proprietary rights therein.
(B) Restrictions. Customer shall not, and shall ensure that its representatives do not: (i) copy, reproduce, distribute, publish, transmit, sell, license, or otherwise exploit the Services or work product outside of Customer's organization without KealyWalker's prior express written consent; (ii) reverse engineer, decompile, or attempt to derive the underlying methodologies of any service or tool provided by KealyWalker; (iii) modify or create derivative works based upon the Services or work product; (iv) remove, alter, or obscure any proprietary notices on the Services or work product; or (v) use the Services or work product for the benefit of any third party or in any manner that competes with KealyWalker's business.
7. INTELLECTUAL PROPERTY; INFRINGEMENT
(A) Ownership. As between the Parties, KealyWalker exclusively owns all right, title, and interest in and to the Services, work product, and all related intellectual property rights. Nothing in this Agreement shall be construed as a transfer or assignment of any intellectual property rights from KealyWalker to Customer.
(B) Remedies for Infringement. In the event of any infringement by Customer or its representatives of KealyWalker's intellectual property rights, KealyWalker shall be entitled to seek immediate injunctive and other equitable relief, without the requirement of posting bond, in addition to all remedies available at law, including monetary damages and recovery of reasonable attorneys' fees and costs.
8. INDEMNIFICATION
(A) Indemnification by Customer. Customer shall defend, indemnify, and hold harmless KealyWalker and its officers, directors, employees, agents, and successors from and against any and all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys' fees) arising out of or relating to: (i) any breach by Customer of any representation, warranty, covenant, or obligation under this Agreement; (ii) any inaccuracy or incompleteness in any Information provided by Customer; (iii) Customer's use of the Services or work product in a manner not authorized by this Agreement; (iv) Customer's failure to comply with applicable federal, state, or local laws or regulations; or (v) the negligence or willful misconduct of Customer or its representatives.
(B) Indemnification by KealyWalker. KealyWalker shall defend, indemnify, and hold harmless Customer from and against any and all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys' fees) arising out of or relating to: (i) any breach by KealyWalker of any representation, warranty, covenant, or obligation under this Agreement; or (ii) the gross negligence or willful misconduct of KealyWalker or its employees or agents. KealyWalker's indemnification obligations shall not apply to the extent any claim arises from inaccurate or untimely Information provided by Customer, or Customer's failure to fulfill its obligations.
9. CONFIDENTIALITY OF CUSTOMER FILES; FILE SECURITY AND RETENTION
(A) Confidentiality. Customer files shall remain the exclusive property of Customer. KealyWalker shall treat as confidential and shall not disclose or otherwise make available any Customer files to any person other than employees of KealyWalker with a need to know, unless otherwise required by applicable law or authority.
(B) File Security. KealyWalker will take reasonable precautions to prevent the loss of or alteration of source documents delivered by Customer, but cannot guarantee against any such loss or alteration. Customer will, to the extent it deems necessary, keep copies of all source documents.
(C) Retention. KealyWalker will retain Customer files in accordance with KealyWalker's then prevailing records retention policies.
(D) Statistical Data. KealyWalker may use Customer files in the compilation of statistical data in which Customer files are not individually identifiable. Such statistical data shall be the property of KealyWalker.
(E) Anti-Bribery. KealyWalker represents, warrants, and agrees that neither it, nor anyone acting on its behalf, has violated or will violate any international anti-bribery principles as embodied in the United Nations Convention Against Corruption, the Foreign Corrupt Practices Act, the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or any applicable national anti-bribery laws.
10. DELIVERY SCHEDULE & RESPONSIBILITIES
The following schedule governs the operational cadence between KealyWalker and Customer. Where a due date falls on a weekend or holiday, the prior business day applies. Penalty and interest consequences arising from Customer's failure to meet its obligations are the sole responsibility of Customer.
| Event | Date | Responsibility |
|---|---|---|
| Customer Data Submission | By 5th of each month | Customer |
| Funding Request Generated | Based on filing due date | KealyWalker |
| Customer Funding Due | 8th, 13th, 18th, 23rd & 28th | Customer |
| Electronic Remittance to Jurisdictions | 9th, 14th, 19th, 24th & 29th | KealyWalker |
| Returns & Payments Sent | 10th, 15th, 20th, 25th & 30th | KealyWalker |
| Notice Response (from Customer) | Within 48 hrs of receipt (no later than 7 days from notice date) | Customer |
| Funding Reconciliation | Upon Customer request | KealyWalker |
Customer's failure to submit data or fund by the dates above may result in rush fees, delayed filings, and Customer bearing responsibility for any resulting penalties or interest, as further described in Sections 2 and 5 above.
11. GENERAL
(A) Assignment. This Agreement shall not be assigned by either Party to any other person or entity without the express written consent of the other Party.
(B) Entire Agreement. This Agreement constitutes the entire understanding between KealyWalker and Customer with respect to the subject matter contained herein with respect to the Services performed directly by KealyWalker, and supersedes and cancels all other prior agreements and understandings on that subject matter, whether written or oral. This Agreement does not modify, and is not intended to modify, the separate commercial agreement between Customer and the Partner.
(C) Waiver. No waiver or modification of this Agreement shall be valid unless in writing and duly executed by both Parties. The failure of either Party to insist upon strict adherence to any provision on one or more occasions shall not be construed as a waiver or deprive the Party of the right to require strict compliance thereafter.
(D) Consent to Jurisdiction. This Agreement shall be governed by and construed in accordance with the law of the State of Delaware (without regard to any conflicts of law rule). Each Party hereby submits to the jurisdiction of the United States District Court for the District of Delaware and the courts of the State of Delaware located in New Castle County in any action to enforce, interpret, or construe any provision of this Agreement.
(E) Severability. In the event any provision of this Agreement is found to be invalid or unenforceable, such finding shall not affect the validity and enforceability of any other provision of this Agreement.
(F) Force Majeure. Neither Party shall be liable for any default or delay in performance if such default or delay is caused, directly or indirectly, by fire, flood, storm, earthquake, electrical disturbances, the elements, or other such occurrences; labor disputes, strikes, or lockouts; wars, rebellions, or revolutions; riots or civil disorder; accidents or unavoidable casualties; interruptions of transportation or communications; internet disruptions; computer viruses and bugs; changes in laws, rulings, regulations, decisions, or requirements of any government, tribunal, or government agency; or any other cause beyond KealyWalker's reasonable control.
(G) Notice. Any notice required herein shall be in writing and sent by email with recipient reply confirmed, or by certified U.S. mail, postage prepaid, addressed to the Party receiving the notice. The Parties may change their address upon written notice to the other Party.
(H) Relationship of the Parties. KealyWalker and Customer acknowledge and agree that KealyWalker is an independent contractor and not an employee, agent, joint venture, or partner of Customer for any purpose. Customer expressly acknowledges and agrees that KealyWalker does not have a fiduciary relationship to Customer and bears no fiduciary obligation to Customer.
12. EXECUTION AND ACCEPTANCE
This Agreement may be accepted electronically. By completing the form below and checking the acceptance boxes, Customer acknowledges that it has read, understands, and agrees to be bound by the terms of this Agreement, including the Delivery Schedule & Responsibilities in Section 10, effective as of the date of submission.
Accept Terms of Service
Complete the fields below to acknowledge and accept the terms outlined above.