Last Updated: January 12, 2020
Welcome to Flex-Tax, Inc. d/b/a Flex Tax and Consulting Group! You are now reading our Terms of Service (“Terms”). Please read these Terms carefully because they are an agreement between you and Flex Tax and Consulting Services (“Flex Tax,” “we,” or “us”) for your use of our website located at www.flextcg.com (the “Site”) and related services accessible via our Site and our mobile device application (“App”). The Site, App, and services are accessible are collectively referred to in these Terms as the “Services.”
1. Agreement to Terms.
Flex Tax is willing to provide the Services to you as our “Customer” only if you accept all the terms contained in these Terms. By clicking on the checkbox marked “I Accept” on the registration or checkout page or by accessing or installing. In other words, by using the Services, you agree to be bound by the Terms and to the collection and use of your information as set forth in our Privacy Policy at https://flextcg.com/privacy-policy. If you are agreeing to these Terms on behalf of a company, you represent that you have the authority to accept these Terms on behalf of the company and to bind the company to these Terms. In that case, “you” and “your” will refer to the company. If you do not agree with all of these Terms, then you must not accept them and you are not permitted to use the Services.
IMPORTANT NOTICE REGARDING ARBITRATION: WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND FLEX TAX THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 18 “DISPUTE RESOLUTION” BELOW FOR DETAILS REGARDING ARBITRATION (INCLUDING THE PROCEDURE TO OPT OUT OF ARBITRATION).
2. Changes to Terms or Services.
We may update the Terms at any time, in our sole discretion. If we do so, we’ll let you know either by posting the updated Terms to the Site and App or through other communications. It’s important that you review the Terms whenever we update them or you use the Services. If you continue to use the Services after we have posted updated Terms, you are agreeing to be bound by the updated Terms. If you don’t agree to be bound by the updated Terms, then, except as otherwise provided in Section 18(g) “Effect of Changes on Arbitration,” you may not use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
3. Who May Use the Services?
(a) Eligibility. You must permitted to file either federal or state taxes to use our Services. You may use the Services only if you can form a binding contract with Flex Tax. You agree to use the Services in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Services by anyone under 13 strictly prohibited. The Services are not available to any Customers of the Services previously remove from the Services by Flex Tax.
(b) Registration. If you want to use certain features of the Services you may have to create an account (“Account”). You can do this via the Site.
(c) Accuracy of Account information. When creating your Account, you must provide accurate and complete information, including payment-related information. You are solely responsible for the activity that occurs on your Account, and you must keep your account password secure. You must notify Flex Tax immediately of any breach of security or unauthorized use of your account. We are not liable for any losses caused by any unauthorized use of your Account.
(d) Customer ID and Password Security. You are the only person authorized to use your Customer ID and password and for maintaining the confidentiality of your Customer ID and password. You shall not permit or allow other persons to have access to or use your Customer ID and password. You are responsible for the use of the Services under your Customer ID. You are responsible for protecting the information on your computer. For instance, by installing anti-virus software, updating your software, password protecting your files, and not permitting third-party physical or electronic access to your computer or tax files.
4. Customer Information and Privacy.
We care about the privacy of our Customers. You understand that by using the Services you agree to the collection. Using and disclosing of your personal information and aggregate information as set forth in our Privacy Policy at https://flextcg.com/privacy-policy/. To have your personal information collected, used, transferred to, and processed in the United States.
5. No Professional Advice.
Unless expressly stated in writing in a separate agreement between Flex Tax and you. Flex Tax does not provide legal, financial, accounting, or other professional services or advice. If we provide you with written business or tax advice, the Services in no way constitute. It is not a replacement for personal professional tax or business advice tailored to your specific needs.
6. Services Functionality.
Subject to the terms and conditions of these Terms, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Services as permitted by the features of the Services. Flex Tax reserves all rights not expressly granted herein in the Services and the Flex Tax Content (as defined below). You may use the Services solely for the preparation and filing of U.S. federal and/or state tax return(s) for which you have paid the applicable fee(s) to Flex Tax, and to obtain written tax advice if applicable.
(a) Non-commercial Use. You may not use the Services to prepare tax returns, schedules or worksheets for a third party on a professional or commercial basis (i.e., for a preparer’s or other fees).
(b) Preparation Services. We will prepare your income tax returns and correspondences based on the information you provide us via the Services. We will not audit or otherwise verify the information you submit, although we may ask you for clarification of some of the information. You agree to provide us with all the necessary information required for preparing the tax returns and correspondences.
Our work in the preparation of tax returns and correspondences cannot rely upon to discover errors, fraud, defalcations, or other irregularities, should any exist. We assume you are properly and timely discharging any and all other tax reporting obligations for which you are responsible. Our Flex Tax Remote Services are limited to the preparation of state and federal income tax returns and do not include consultation on any other taxation issues, including local or sales taxation, unless expressly stated in writing.
(c) Tax Year. Our tax preparation Services pertain only to the tax year and the tax returns specified in the Services, and our responsibilities do not include the preparation of any other tax returns that may be due to any taxing authority.
(d) Your Recordkeeping Responsibilities. You acknowledge and agree that you understand state and federal recordkeeping requirements, including those of the Internal Revenue Service (“IRS”) and you agree to comply with those requirements and that as between you and Flex Tax, Flex Tax has no responsibility in this regard.
(e) Your Reporting Responsibilities. The United States imposes reporting requirements with respect to persons having certain direct and indirect interests in a foreign bank account or other foreign financial assets. Failure to comply with these reporting requirements may result in substantial civil and criminal penalties. You accept responsibility for informing us if you believe that you may have foreign reporting requirements with the U.S. Department of the Treasury and/or Internal Revenue Service and you agree to timely provide us with the information necessary to prepare the appropriate form(s). We assume no liability for penalties associated with the failure to file, or untimely filing, of any of these forms.
(f) Limitation of Liability. You have the final responsibility for the accuracy of each item on the returns, as well as, the overall correctness of the returns. We do not audit or otherwise verify the information that is in your tax returns or tax-related documents submitted to tax authorities. if such documents contain errors, there may be an assessment of additional tax plus interest and penalties.
Subject to any Guarantee we provide in writing or applicable law We assume no liability for any additional tax, penalties, or other assessments. You acknowledge that any understated tax, Penalty, interest, or other related fee or cost imposed by any tax authority is your responsibility and that we have no responsibility in that regard.
You acknowledge that we are not liable for any loss due to any financial or personal decision you take related to your use of our services, any loss due to inaccurate information that we receive from you or any third party related to your use of our services, any delay in filing your tax returns, and any loss due to your inability to access or use your ID or Password, or any Loss Due to an Authorized Use of Your Account.
(g) Audit Support Services. We will provide you with such additional support services, with fees on an hourly basis, in your response to inquiries or examinations by taxing authorities. These services will include assisting you in the event your taxes are audited. This Service does not include providing legal advice or direct representation unless expressly provided in writing. You must notify us in writing by either uploading the audit notice you receive from the IRS or State Tax Authority to our app or by sending us an email at [email protected] within fourteen (14) days of receiving the audit letter.
(h) Usage Limits. We will make every practicable effort to provide you with our Services. We may however limit or discontinue your use of our Services if your use substantially exceeds the normal use of our Services as compared to other customers. We will notify you as quickly as we can if we limit our provision of Services or discontinue your ability to use our Services with you. You acknowledge that we are under no obligation to provide with a reason for discontinuing our Services. If you made a payment for our Services, we will follow the policies set out in Section 10 (Account Fees) set forth below.
(i) Recordkeeping. We retain all tax-related information as part of these Tax Services for seven years. If your return is filed electronically, it will be converted to and stored in Flex Tax systems in a standardized format, and then transmitted to the applicable federal and/or state taxing authority. To the extent required by applicable law and regulation, we store and maintain the information that you provide to us. However, in the event your return is not accessible from Flex Tax systems you must contact the IRS.
7. Electronic and Paper Filing.
The applicable date for filing tax returns is available from the IRS. We may also post this information on our Site. The IRS requires Flex Tax to notify it, in connection with the electronic filing of your tax return, of the Internet Protocol (“IP”) address of the computer from which the return originated and whether the email address of the person electronically filing the return has been collected. By using the Services to prepare and submit your tax return, you consent to the disclosure to the IRS and any other tax or revenue authority of all information relating to your use of the Services for the electronic filing of your return(s).
If you are filing one or more State tax returns, then by using a computer system and software to prepare and transmit return(s) electronically, you consent to the disclosure of all information pertaining to your use of the system and software to the States in which you are filing the returns, as applicable by law, and to the transmission of your tax return(s).
Certain states may require filing paper returns. In such cases, you will have to sign the tax returns by hand (provide a wet signature) and file the returns directly with your state’s tax authority. We will provide you with copies of your tax returns, a prepaid envelope, and instructions on where to file your paper returns.
8. Import Services.
The Services includes a feature that allows you to import, where applicable, certain information from financial institutions, payroll processors, financial software, and other similar sources of financial information. In some cases, we will directly access this information. We may also integrate third-party service providers to facilitate this Service solely for the purpose of importing your information.
You are responsible for verifying the accuracy of the information that is imported. You authorize us to obtain your information from any third-party services in this regard. You represent that you have the necessary rights to grant us access to your accounts with third parties. Third parties are not affiliated with or endorsed or sponsored by us.
The Services also include functionality designed to read information from images (for example, W-2s, other tax forms, or credit cards used for payment) photographed using a mobile device. This functionality is limited to those forms or items that the Services can read. If the form or other item you photograph and submit through the Services is not supported, you may need to manually enter your information.
9. Rights and Terms for Apps (In Process).
(a) Rights in App Granted by Flex Tax. Subject to your compliance with these Terms, Flex Tax grants to you a limited non-exclusive, non-transferable license, with no right to sublicense, to download and install a copy of the App on a mobile device or computer that you own or control and to run such copy of the App solely for your own personal non-commercial purposes. You may not copy the App, except for making a reasonable number of copies for backup or archival purposes. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App; or (iv) make the functionality of the App available to multiple Customers through any means. We reserve all rights in and to the App not expressly granted to you under these Terms.
(b) Accessing the App from App Store. The following terms apply to any App accessed through or downloaded from any app store or distribution platform (like the Apple App Store or Google Play) where the App may now or in the future be made available (each an “App Provider”). You acknowledge and agree that:
- These Terms are concluded between you and Flex Tax, and not with the App Provider, and Flex Tax (not the App Provider), is solely responsible for the App.
- The App Provider has no obligation to furnish any maintenance and support services with respect to the App.
- In the event of any failure of the App to conform to any applicable warranty, you may notify the App Provider, and the App Provider will refund the purchase price for the App to you (if applicable) and, to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the App. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Flex Tax.
- The App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation.
- In the event of any third-party claim that the App or your possession and use of that App infringe that third party’s intellectual property rights, Flex Tax will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required by these Terms.
- The App Provider, and its subsidiaries, are third-party beneficiaries of these Terms as related to your license to the App, and that, upon your acceptance of the Terms, the App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App against you as a third-party beneficiary thereof.
- You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country, and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
- You must also comply with all applicable third-party terms of service when using the App.
10. Account Fees.
We may offer different payment plans for our customer Accounts. The payment plans include an advance or one-time payment option, and annual or monthly subscription services. If you select a subscription-based payment plan, you agree to pay in advance the applicable subscription fee as posted on the Site or in the App, plus any applicable taxes and other fees that may accrue in relation to your use of the Services. All fees are non-refundable and non-transferable unless otherwise provided in these Terms.
(a) Advance Payment. You will make an Advance Payment when you open an Account. If you make an Advance Payment, you will be able to use the Services as disclosed to you upon payment. You have the option of choosing additional Services that may incur an additional cost. We will disclose the cost of the additional Services and you will agree to the cost before making the payment.
(b) One-Time Payment. You may the option of making a One-Time Payment at the time of filing the tax returns with consent from Flex Tax. The amount of the payment due and payable by you will be communicated to you in advance of your making the purchase. We will also tell you what Services are covered by this One-Time Payment.
(c) Subscriptions. If you purchase a Subscription, you will be charged either an annual or monthly Subscription fee, plus any applicable taxes, and other charges (“Subscription Fee”), at the beginning of your Subscription Period (defined below) and each Subscription Period thereafter, at the then-current Subscription Fee.
(i) Annual Subscription. You may enroll for an Annual Subscription Account by paying an annual fee at the price listed in our Services. If you purchase an Annual Subscription, you are eligible to receive the services described to you in Paragraphs 6 through 9 for the tax year in which the Annual Subscription payment is made. For instance, payments made in December 2018 will cover Services related to your 2018 tax filings, which would be filed in 2019. Even if filed in 2019, those Services will not include Services related to your 2019 tax filings.
(ii) Monthly Subscription. You can otherwise enroll for a Monthly Subscription Account. A Monthly Subscription guarantees access to the services described to you in Paragraphs 6 through 9 above to the extent those Services can be delivered in the month in which the fee is paid. THE MONTHLY SUBSCRIPTION FEE DOES NOT NECESSARILY INCLUDE THE COST OF TAX FILING SERVICES. YOU MAY HAVE TO PAY AN ADDITIONAL AMOUNT FOR certain TAX-FILING SERVICES.
(iii) Recurring Payment. By entering into these Terms and electing a Monthly Subscription or Annual Subscription, you acknowledge that your subscription has a recurring payment feature and you accept responsibility for all recurring payment obligations prior to cancellation of your subscription by you or Flex Tax. Your Monthly or Annual Subscription continues until canceled by you or we terminate access to or use of the Services in accordance with these Terms.
(d) Cancellations and Terminations. You may cancel a purchase transaction and may be eligible for a full refund within ten days calendar days of your initial purchase of an Annual Subscription or Monthly Subscription if you have not obtained any Services described above. If you have received our Services, YOUR PURCHASE IS FINAL AND YOU WILL NOT BE ABLE TO CANCEL THE PURCHASE AND/OR RECEIVE A REFUND OF YOUR Advance Payment, ONE-TIME PAYMENT, OR SUBSCRIPTION FEE AT ANY TIME. But if something unexpected happens in the course of completing a purchase transaction, we reserve the right to cancel your transaction for any reason; if we cancel your transaction, we’ll refund any payment you have already remitted to us for such transaction. Without limiting the foregoing, you may cancel your subscription at any time to avoid Recurring Payments, but please note that such cancellation will be effective at the end of the then-current subscription period. EXCEPT AS SET FORTH ABOVE WITH RESPECT TO YOUR INITIAL ANNUAL SUBSCRIPTION OR MONTHLY SUBSCRIPTION PURCHASE, YOU WILL NOT RECEIVE A REFUND OF ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN-CURRENT SUBSCRIPTION PERIOD AT THE TIME OF CANCELLATION. We may in our sole discretion provide you a credit to your Account for your future use of our Services.
To cancel a subscription, you must contact us by at least email at [email protected]. You acknowledge that you must receive written confirmation of your cancellation before your subscription is canceled. You will be responsible for all Subscription Fees (plus any applicable taxes and other charges) incurred for the then-current Subscription period. If you cancel, your right to use the Services will continue until the end of your then-current subscription period and will then terminate without further charges.
(e) Credits. Any refunds payable to you by Flex Tax may be made by way of a credit that can be used for future fees payable by you to Flex Tax for use of the Services. Any such credits will be recorded in your Account. From time to time, we may offer promotion codes, coupons, or other similar offers for credits or discounts in connection with our Services (collectively, “Credits”). YOUR USE OF SUCH CREDITS WILL BE Subject to applicable law AND WHICH GOVERN YOUR USE OF SUCH CREDITS WHICH WE WILL COMMUNICATE TO YOU.
11. Payment Terms.
For Services offered on a One-Time Payment or Subscription basis, the following terms apply.
(a) General. Prices are ultimately determined at the time of filing and are subject to change without notice. We will disclose the Services we offer and the cost for each component of those Services when you open an Account. If there is a change of circumstance in your tax returns between the time you open an Account and make a payment based on your selection of Services we offer and the Services your tax returns require when we file your tax returns, we may increase the cost to file your tax returns. The prices for each type of tax return will not change and will be disclosed to you at every stage of the transaction.
(b) Payment Processing. All fees are payable in U.S. dollars. We use WaveApps, PayPal, Stripe, Square, Apple Pay, and Google Pay, as our third-party payment processors. Whether you make a One-Time Payment or purchase a Subscription (each, a “Transaction”), you expressly authorize us (or our third-party payment processors) to charge you for such Transaction. We may ask you to supply additional information relevant to your Transaction, including your credit card number, the expiration date of your credit card, and your email and postal addresses for billing and notification (such information, “Payment Information”). You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. When you initiate a Transaction, you authorize us to provide your Payment Information to third parties so we can complete your Transaction and charge your payment method for the type of Transaction you have selected (plus any applicable taxes and other charges). You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information).
12. Service Rules.
You agree not to engage in any of the following prohibited activities in connection with your use of the Services: (i) copying, distributing, or disclosing any part of the Services in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Services in a manner that sends more request messages to the Flex Tax servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that Flex Tax grants the operators of public search engines revocable permission to use spiders to copy materials from www.Flex Tax.com for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Services; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid information, viruses, worms, or other software agents through the Services; (vii) collecting or harvesting any personally identifiable information, including account names, from the Services; (viii) using the Services for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Services; (xi) accessing any content on the Services through any technology or means other than those provided or authorized by the Services; or (xii) bypassing the measures we may use to prevent or restrict access to the Services, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Services or the content therein.
13. Terminating our Services.
We may terminate or suspend your use of our Services subject to the terms and conditions of these Terms without notice in whole or in part for any violation of these Terms. We may terminate a free account at any time. Upon termination for any reason or no reason, you continue to be bound by the following Sections: 1, 4, 5, 6(f), 6(i), 10(c), and 12-19.
14. Content Ownership, Responsibility, and Removal.
(a) Definitions. Some areas of the Services allow Customers to post content such as profile information, comments, questions, and other content or information, including information relating to submission of taxes submitted by a Customer of the Services (any such materials a Customer submits, posts, displays, or otherwise makes available on the Services “Customer Content”). You grant to us a non-exclusive, transferable, worldwide, perpetual, irrevocable, fully-paid, royalty-free license, with the right to sublicense, under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Customer Content solely in connection with the provision of the services to the Customer and for no other purposes.
(b) Restrictions. You agree not to post Customer Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contains any information or content that you know is not correct and current. You agree that any Customer Content that you post does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights (as defined below) or rights of privacy. Flex Tax reserves the right but is not obligated, to reject and/or remove any Customer Content that Flex Tax believes, in its sole discretion, violates these provisions.
For the purposes of these Terms, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress, and service mark rights, goodwill, trade secret rights, and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals, and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
In connection with your Customer Content, you affirm, represent, and warrant the following:
- You have the written consent of each and every identifiable natural person in the Customer Content to use such person’s name or likeness in the manner contemplated by the Services and these Terms, and each such person has released you from any liability that may arise in relation to such use.
- Your Customer Content and Flex Tax’s use thereof as contemplated by these Terms and the Services will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights.
- Flex Tax may exercise the rights to your Customer Content granted under these Terms without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.
- To the best of your knowledge, all your Customer Content and other information that you provide to us is truthful and accurate.
Flex Tax takes no responsibility and assumes no liability for any Customer Content that you or any other Customer or third-party posts or sends over the Services. You shall be solely responsible for your Customer Content and the consequences of posting or publishing it. You understand and agree that you may be exposed to Customer Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that Flex Tax shall not be liable for any damages you allege to incur as a result of Customer Content.
15. Our Proprietary Rights.
Except for your Customer Content, the Services and all materials, software, and content therein (the “Flex Tax Content”), and all Intellectual Property Rights related thereto, are the exclusive property of Flex Tax and its licensors. Except as explicitly provided herein, you are not permitted to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, or create derivative works from any Flex Tax Content. Use of the Flex Tax Content for any purpose not expressly permitted by these Terms is strictly prohibited.
16. Links to Third Party Websites or Resources.
The Services (including the App) may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products, or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.
17. Limitation of Liability.
(a) NEITHER FLEX TAX NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF INFORMATION OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT FLEX TAX OR ANY OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
(b) IN NO EVENT WILL FLEX TAX’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE AMOUNTS YOU HAVE PAID OR ARE PAYABLE BY YOU TO FLEX TAX FOR USE OF THE SERVICES OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO FLEX TAX, AS APPLICABLE.
(c) THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN FLEX TAX AND YOU.
(d) The Services are controlled and operated from facilities in the United States. Flex Tax makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so of their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Services if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Services are solely directed to individuals, companies, or other entities located in the United States.
18. Governing Law and Forum Choice.
These Terms and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of California, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 18 “Dispute Resolution,” the exclusive jurisdiction for all Disputes (defined below) that you and Flex Tax are not required to arbitrate will be the state and federal courts located in the Northern District of California, and you and Flex Tax each waive any objection to jurisdiction and venue in such courts.
19. Dispute Resolution.
For any dispute with Flex Tax, you agree to first contact us at [email protected] and attempt to resolve the dispute with us informally.
(a) Mandatory Arbitration of Disputes. In the unlikely event that Flex Tax has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to these Terms, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, Inc. (“JAMS”), under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein.
(b) We each agree that any dispute, claim, or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation, or validity thereof or the use of the Services or Content (collectively, “Disputes”) not otherwise resolved informally will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Flex Tax agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms and that you and Flex Tax are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
(c) Exceptions and Opt-out. As limited exceptions to Section 18(a) above: (i) you may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights. In addition, you will retain the right to opt out of arbitration entirely and litigate any Dispute if you provide us with written notice of your desire to do so by email at [email protected] within thirty (30) days following the date you first agree to these Terms.
(d) Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by JAMS, Inc. under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in San Francisco County, California, unless you and Flex Tax agree otherwise. If you are using the Services for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees, and reasonable costs for expert and other witnesses. If you are an individual using the Services for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Flex Tax from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our information security, Intellectual Property Rights, or other proprietary rights.
If your claim is for U.S. $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or video-conference hearing, or by an in-person hearing as established by the JAMS Rules. If your claim exceeds U.S. $10,000, the right to a hearing will be determined by the JAMS Rules. Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability, and scope of this arbitration agreement.
(e) Arbitration Costs. Payment of all filing, administration, and arbitrator fees will be governed by the JAMS Rules. We’ll pay for all filing, administration, and arbitrator fees and expenses if your Dispute is for less than $10,000 unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration, we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
(f) Class Action Waiver. YOU AND FLEX TAX AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
(g) Effect of Changes on Arbitration. Notwithstanding the provisions of Section 2 “Changes to Terms or Services” above, if Flex Tax changes any of the terms of this Section 18 “Dispute Resolution” after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to [email protected]) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Flex Tax’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Flex Tax in accordance with the terms of this Section 18 “Dispute Resolution” as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
(h) Severability. With the exception of any of the provisions in Section 18(f) of these Terms (“Class Action Waiver”), if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
20. General Terms.
(a) Entire Agreement. These Terms constitute the entire and exclusive understanding and agreement between Flex Tax and you regarding the Services, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Flex Tax and you regarding the Services and Content. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. You may not assign or transfer these Terms, by operation of law or otherwise, without Flex Tax’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Flex Tax may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors, and permitted assigns.
(b) Notices. Any notices or other communications provided by Flex Tax under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
(c) Waiver of Rights. Flex Tax’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Flex Tax. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
21. Contact Information.
If you have any questions about these Terms or the Services, please contact us at [email protected].
