This Reasonable Efforts Questionnaire* Terms and Conditions (the “Agreement”) is made by the person, exempt organization representative, or entity accepting the terms of this Agreement (“you” or “your”) to enable you to access the electronic Reasonable Efforts Questionnaire (the “Questionnaire”) provided by Clark Nuber, P.S. (“Clark Nuber”)** for the purpose of determining if there are certain transactions with/or between the exempt-organization and Interested Persons** in order to meet the reasonable efforts criteria defined in the Form 990 Instructions. The access you are purchasing will provide you with access to the electronic Questionnaire.
The Questionnaire is an electronic program and related information and documents (which shall include all modifications and updates) licensed to and used by Clark Nuber in order for you to meet the reasonable efforts*** for certain information related to the Forms 990 or 990-EZ filing. You acknowledge and agree that the Questionnaire is confidential and proprietary to Clark Nuber and its licensor, and access is granted to you only for use by you and if applicable, your Interested Persons. You agree to not distribute, transmit, sell, assign or make available the Questionnaire, or any part thereof, to any other person or entity except only to you and if applicable, your Interested Persons, and then only to acquire the disclosures related to Form 990 and related schedules for one tax year. You agree that the Questionnaire constitutes confidential information of, and is a valuable trade secret of, Clark Nuber and its licensor and will not be disclosed by you to any third party (except to the extent required by law or to facilitate the use of the Questionnaire for the purpose intended to provide information from you for meeting reasonable efforts related to the Forms 990 or 990-EZ) and will be safeguarded by you with not less than the same degree of care exercised by you to protect you own trade secrets. You shall not remove or alter any copyright or proprietary notices included in or with the Questionnaire. You agree to not use any of the Questionnaire or format thereof or concepts therein, or any of the code or processes thereof, including any reverse engineering of the Questionnaire, to create a different or similar Questionnaire to acquire or organize findings related to Forms 990 or 990-EZ tax returns. If you desire to have a Questionnaire for different tax years, you must purchase a separate access to the Questionnaire from Clark Nuber for each such other tax year, or acquire the necessary information for such tax year without violating the terms and restrictions in this Agreement.
Clark Nuber makes no, and disclaims any, warranty or representation, express or implied, that the Questionnaire will be compatible with or work with your computers or electronic devises, and makes no and disclaims all express or implied warranties of merchantability and fitness for a particular purpose.
By accessing the Questionnaire you (i) agree to pay, concurrently with your execution of this Agreement, the purchase price for access to the Questionnaire and (ii) agree to the preceding and following terms and conditions:
1. Use Rights. Subject to the terms of this Agreement and any other agreement between you and Clark Nuber, you will be granted non-exclusive access to the Questionnaire. You do not acquire any intellectual or other property rights in the Questionnaire or any associated software, systems, documentation or other materials. All such rights and interests are the exclusive property of Clark Nuber and/or its licensor. The terms in this Agreement apply also to any updates, supplements, or support services for the Questionnaire, unless other terms accompany those items. If so, those terms apply.
2. Acceptable Use and Access. The Questionnaire and any information therefrom may not be used by you for more than one tax year, and may not be used for any purpose other than to facilitate reasonable efforts related to Forms 990 or 990-EZ for one tax year. You will immediately notify Clark Nuber if you believe access to or use of the Questionnaire has been or is being used by you in violation of this Agreement.
3. No Redistribution. You may not redistribute any material (electronic, paper, or otherwise) retrieved from the Questionnaire other than for Forms 990 or 990-EZ tax returns by you or by your tax preparer for one income tax year, and you will not allow any use of the Questionnaire that will infringe upon the copyright or other proprietary right of Clark Nuber and/or its licensor. You may not use the Questionnaire to create a different or similar product which competes or interferes with the business of Clark Nuber and/or its licensor with respect to the use of the Questionnaire.
4. Term and Termination.
a. Term. The term of your right to access the Questionnaire shall continue from the delivery of the Questionnaire until the expiration date (if any) as listed on any document delivering the Questionnaire to you, or December 31st of the 3rd year following the date you order access to the Questionnaire, whichever is earlier; provided that your right to access the Questionnaire shall terminate on the date of any breach of this Agreement by you.
b. Termination for Breach. In the event your right to access the Questionnaire is terminated for breach (i) you shall no longer thereafter access or permit access to the Questionnaire and shall destroy any software in your possession or under your control and any materials retrieved from the Questionnaire, and (ii) Clark Nuber and/or its licensor shall have the right to any other legal remedy available, including without limitation, suspension of delivery of, or deactivation of, the Questionnaire.
5. Privacy. Clark Nuber will not, for any competitive purpose, make use of any of your information captured by the Questionnaire. Clark Nuber makes no representation as to whether any federal, state or local laws may regulate your use of the Questionnaire or require you to obtain consent from any person (or, in the case of minors, the parent or guardian of such person) for your use of information acquired from the Questionnaire.
6. Access and Use. Clark Nuber and/or its licensor may assist you from time to time regarding hardware and software compatibility with the Questionnaire, however CLARK NUBER AND/OR ITS LICENSOR SPECIFICALLY DISCLAIM ANY RESPONSIBILITY FOR DETERMINING THE COMPATIBILITY OF ANY HARDWARE OR SOFTWARE NOT SUPPLIED BY CLARK NUBER AND/OR ITS LICENSOR WITH THE QUESTIONNAIRE AND PROVIDES NO WARRANTY WITH RESPECT TO THE OPERATION OF SUCH HARDWARE OR SOFTWARE WITH THE QUESTIONNAIRE.
7. Limited Warranty and Disclaimer of Warranty. Clark Nuber and/or its licensor warrant that they have all rights necessary to enter into this Agreement and to provide access to the Questionnaire. EXCEPT AS PROVIDED IN THE PRECEDING SENTENCE, THE QUESTIONNAIRE IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE WARRANTIES IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, NEITHER OF CLARK NUBER AND/OR ITS LICENSOR WARRANTS THAT THE QUESTIONNAIRE WILL BE ERROR-FREE OR WILL BE AVAILABLE FOR USE AT ALL TIMES. CLARK NUBER AND ITS LICENSOR MAKE NO WARRANTY REGARDING (A) THE ACCURACY, TIMELINESS, CORRECTNESS, RELIABILITY, CURRENCY OR COMPLETENESS OF THE INFORMATION REQUESTED FROM YOU IN THE QUESTIONNAIRE OR THE RESULTS OF YOUR USE OF THE QUESTIONNAIRE OR THE INFORMATION OBTAINED FROM THE QUESTIONNAIRE, EVEN IF ASSISTED BY CLARK NUBER AND/OR ITS LICENSOR, OR (B) WHETHER THE QUESTIONNAIRE ACQUIRES ALL FINDINGS NECESSARY TO ACCURATELY COMPLETE FORMS 990 OR 990-EZ TAX RETURNS.
8. Limitation of Liability. THE MAXIMUM LIABILITY OF CLARK NUBER AND/OR ITS LICENSOR ARISING OUT OF ANY CLAIM RELATED TO THE QUESTIONNAIRE WHETHER IN CONTRACT, TORT OR OTHERWISE SHALL BE LIMITED TO THE TOTAL AMOUNT PAID BY YOU OR YOUR ACCOUNTING FIRM TO CLARK NUBER FOR ACCESS BY YOU TO THE QUESTIONNAIRE. IN NO EVENT SHALL CLARK NUBER AND/OR ITS LICENSOR BE LIABLE TO YOU FOR ANY LOST PROFITS, OR ANY OTHER DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES RELATED TO THE USE OF THE QUESTIONNAIRE, ANY INFORMATION OBTAINED THEREFROM OR FROM CLARK NUBER’S AND/OR ITS LICENSOR’S FAILURE TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT, REGARDLESS OF WHETHER CLARK NUBER AND/OR ITS LICENSOR ARE DEEMED NEGLIGENT, EVEN IF IT IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
a. Place. The place where this Agreement is formed and where all services to be supplied by Clark Nuber or its licensor will be deemed performed, is the Clark Nuber offices located at: 10900 NE 4th Street, Suite 1400, Bellevue, WA 98004.
b. Assignment. You may not assign this Agreement, or sublet, assign or grant to others any rights granted hereunder, or grant or permit anyone other than yourself to access the Questionnaire (other than for the purpose of Forms 990 or 990-EZ tax returns by or for you for one income tax year) without the prior written consent of Clark Nuber and its licensor which may be granted or withheld in Clark Nuber’s sole discretion.
c. Taxes. Except to the extent that you are tax-exempt as to a particular tax payable, you are responsible for any sales, use, VAT, personal property or other local taxes (except those based on Clark Nuber’s and/or its licensor’s income) imposed on the use of or access to the Questionnaire.
d. Waiver. Failure to enforce any provision of this Agreement shall not be construed to be a waiver of such provision.
e. Force Majeure. Neither party shall be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its reasonable control including, but not limited to acts of God, government restrictions (including the denial or cancellation of any export or other necessary license), wars, acts of terrorism and/or any other cause beyond the reasonable control of the party whose performance is affected.
f. Interruption of Electronic Access. Clark Nuber and/or its licensor shall not be liable or deemed in default of this Agreement for any failure, delay or interruption in the use of the Questionnaire, or any failure, degradation or delay of any equipment or telecommunications, resulting from any cause or circumstance beyond the reasonable control of Clark Nuber and/or its licensor.
g. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto with respect to its subject matter and supersedes any and all previous and contemporaneous understandings or agreements between the parties with respect to the same subject matter and may not be amended, except in writing signed by the parties.
h. Severability. If any provision of this Agreement is found invalid or unenforceable pursuant to a decree or decision of a court of competent jurisdiction, the remainder of this Agreement shall remain valid and enforceable according to its terms.
10. Applicable Law and Jurisdiction. In the event that either party commences any legal or equitable action or proceeding to enforce or defend a claim arising out of this Agreement, such proceeding shall be commenced exclusively in State or Federal courts located in King County, Washington, having subject matter jurisdiction and each party hereto hereby submits to jurisdiction therein and agrees that any such court is a convenient forum. This Agreement shall be construed and performed exclusively under the laws of the State of Washington. The prevailing party in any dispute shall be entitled to recover from the other all necessary expenses and reasonable attorneys’ fees incurred, in addition to any other relief to which it is entitled.
*Eve Rose Borenstein, LLC participated in the creation of the Questionnaire.
**For purposes of this agreement the term “Interested Persons” also includes current and former highly compensated individuals who are listed on the Form 990, Part VII, even though those individuals are not considered Interested Persons for Form 990, Schedule L. In contrast, substantial contributors are considered “Interested Persons” for purposes of Schedule L’s Parts II-IV. The 2016 Schedule L instructions make it clear that substantial contributor’s names need not be inputted when disclosing the undertakings with them or with parties connected to them. Therefore, use a different method of reasonable efforts other than the Questionnaire for substantial contributors.
***The Questionnaire does not have questions related to Schedule L, Part I, Excess Benefit Transactions, which is only applicable to Code Secs. 501(c)(3), 501(c)(4), and 501(c)(29) organizations. While reasonable efforts applies to that Part, it is not practical to all interested persons otherwise covered by the questionnaire (some of who are not the subject to Schedule L, Part I) if their compensation or other financial transactions rose to the level reached by the term “excess business transaction”. Management at the Reporting Organization needs to be aware of who their “disqualified persons” (within the meaning of Code Sec. 4948) are and have policies and controls in place to prevent and/or detect any excess benefit transactions.