Last Modified: July 8, 2020
We reserve the right to modify these terms and will provide notice of these changes as described below. This Agreement applies to all visitors, users, and others who access or use the Service (“Users”).
1. Our Service
YearEnd provides a place for you to optimize your equity and taxes. Through our Service, you can, among other things, get a real-time picture of your tax liability and file your tax returns. Your employer (the “Employer”) may have partnered with us to help you access the Service.
This Agreement is a contract between you and us. You may use the Service only if you can form a binding contract with us, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Service by anyone under 18 is strictly prohibited and in violation of this Agreement. The Service is not available to any Users previously removed from the Service by us.
If your Employer offers this Service to you as a benefit, your Employer is not a party to this Agreement. For you to create an account on the Service (each a “User Account”) in order to take advantage of a benefit offered by your Employer, your Employer must have entered into a binding, valid, and enforceable written agreement with us (an “Employer Agreement”). You understand that your ability to use the Service as a part of this benefit is contingent on the Employer Agreement remaining effective and that, if at any time the Employer Agreement becomes ineffective (e.g., it expires or is terminated), you may no longer use the Service as part of your Employer benefit. If you wish to continue using the Service after that point, you must subscribe to the Service on your own account. To the extent the Employer Agreement contains terms that expressly supersede specific, identified terms of this Agreement to your benefit, such terms will apply to you and your use of the Service.
1.2 Provision of the Service
Subject to the terms and conditions of this Agreement, including your or your Employer’s timely payment of all amounts due to us, we will provide the Service to you for your personal, noncommercial use for so long as you or your Employer, as applicable, have an active Monthly or Annual Subscription Plan with us.
1.3 Tax Return Service
You may use the Service to prepare or have prepared valid federal and state tax return(s) for which you have paid the applicable fee(s), and after proper registration and any applicable payment, to file electronically and/or print such federal and state tax return(s). No more than one (1) federal tax return may be filed from the Services or from any one email address entered within the Services. You can file a late or amended tax return for applicable tax year, through the Services, as permitted by the Internal Revenue Service (“IRS”) and supported by the Service. You may not use the services to prepare tax returns, schedules, or worksheets on a professional or commercial basis (i.e., for a preparer's or other fee).
In connection with the electronic filing of your tax return, the IRS may require us to notify it of the 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 Service 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 the electronic filing of your tax return. 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).
Any live tax return support services offered via the Service (the “Live Support Services”) will be based on information you provide and some tax topics or situations may not be included as part of this Service, which shall be determined in our sole discretion. If you request a full review of your tax return or if the assistance with your tax return requires significant oversight and actual preparation, we, in our sole discretion, may be obligated to sign your return as the preparer and will then have primary responsibility for the preparation of your return. You are still responsible for reviewing your return before it is filed to verify its overall completeness and accuracy. You also understand and agree that once you delegate preparation of your tax return to us, you may no longer be able to make changes to your tax return within the Services. We may use a variety of methods (e.g., in-product, widgets, Internet, remote access, online community, chat, e-mail, video, and phone) in our sole discretion to provide technical support and customer service in connection with the Live Support Services. The terms and conditions governing the offering of these Live Support Services, which may require the payment of an additional fee, are subject to change as announced by us from time to time. If you choose to allow a YearEnd agent to have remote access to your computer via the Internet to provide help, you should close other browsers or applications or follow other instructions to enable such access. We will use reasonable judgment to resolve questions in your favor where a tax law may be unclear, to the extent permitted by professional conduct and applicable law and provided there is substantial authority for doing so. If there are conflicting interpretations of the law, we will explain the possible positions that may be taken on your tax return(s). We will follow the position you request, provided it is consistent with our understanding of the Internal Revenue Code (“IRC”), tax regulations, Revenue Rulings, Revenue Procedures, Private Letter Rulings and any related court cases.
You are required to provide us with access to all necessary supporting tax documentation (W-2, 1099, etc.) as requested by us through the Live Support Services. We have the right, in our sole discretion, to cease providing you with Live Support Services if you fail to provide requested information or do not respond to our requests in a timely manner. If you provide any of your information within less than 10 days of the tax filing deadline, we may ask you to file an extension or be unable to provide Live Support Services. We cannot be relied upon to discover errors, fraud or other irregularities in prior year tax returns or other documents, should any exist. We will not independently audit or otherwise verify the information you submit, although we may ask you for clarification of some of the information.
You are responsible for maintaining adequate documentation to substantiate the accuracy and completeness of your tax returns. You acknowledge and agree that you must comply with state and federal recordkeeping requirements, including those of the IRS. We have no obligation to store your tax documents other than to the extent required by applicable law and regulation. You agree to hold us harmless from any liability, including but not limited to, additional tax, penalties, interest and professional fees resulting from the disallowance of tax deductions due to inadequate documentation.
These forms may use a third party e-signature provider which you agree to use. You agree that with your electronic signature on these forms you represent that you and any joint filer have received a copy of, reviewed, and approved the final tax return(s) as complete and accurate.
Electronic filing may not be available for certain tax returns or in some states. Our responsibility with respect to e-filing your tax return(s) is limited to using commercially reasonable efforts to facilitate your transmission of your tax return(s) to the applicable taxing authority who accept them. If we cannot electronically transmit your tax return, you will have to manually sign the tax returns and mail the returns directly to the tax authority. If required, we will provide you with paper copies of your tax returns and instructions where to send them. You will be responsible for postage and mailing of the tax return(s).
You agree that for returns with “married filing jointly” filing status, both spouses are deemed to be customers of YearEnd and subject to the terms of this Agreement. Both individuals acknowledge that there is no expectation of privacy between the spouses by us concerning the Services, in connection with this Agreement. We shall be at liberty to share with either of you, without prior consent of the other, documents and other information concerning the preparation of your tax return(s).
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 are responsible for informing us of all foreign assets and we may determine that you are not eligible for the tax return Service based on your situation with such foreign assets. If we prepare your individual income tax return, you will be responsible for filing any required foreign tax returns or required foreign account reporting, including FBAR Form 114. You, and not us, assume all liability for any penalties associated with the failure to file, or untimely filing, of any of these forms.
We reserve the right to refuse to prepare a tax return for any reason in our sole discretion. Additionally, the availability of Live Support Services or our ability to meet your tax filing deadlines is subject to reasonable timing allowed, presentation of documents and your prompt response to inquiries or materials required for your tax return(s). We reserve the right to revoke a delegated tax return for any reason in our sole discretion. Additionally, the availability of the Live Support Services or our ability to meet your tax filing deadlines is subject to reasonable timing allowed, presentation of documents and your response to inquiries or materials required for your tax return.
1.4 User Accounts
We may offer different types of User Accounts for different types of Users. You may never use another User’s User Account without our permission. When creating your User Account, you must provide accurate and complete information, and you must keep this information up to date. You are solely responsible for the activity that occurs on your User Account, and you must keep your User Account password secure. You must notify us immediately of any breach of security or unauthorized use of your User Account. We will not be liable for any losses caused by any unauthorized use of your User Account.
You may control your User profile and how you interact with the Service by changing your settings on the Service. By providing us your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Service, YearEnd Content you may be interested in, and special offers.
1.5 Email Selected for Your Account
You get to choose what email address(es) you use to register for your User Account. Please be aware, however, that if the domain of the email address associated with your account is owned or controlled by your Employer and your Employer enters into an Employer Agreement with us and offers the Service as part of a benefit, then you may convert your subscription plan to an employee benefit paid plan under such Employer Agreement.
1.6 Changes to the Service
We may, without prior notice, change the Service; stop providing the Service or features of the Service, to you or to Users generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement.
1.7 Service Location
The Service is controlled and operated from facilities in the United States. You may not use the Service 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.
1.8 Information and Materials You Provide to Us
By providing User Content to us, you represent and warrant to us that: (a) you have obtained, and are solely responsible for obtaining, all consents and authorizations as may be required by law to submit, post, provide, or otherwise make available to us any User Content relating to third-parties; and (b) your User Content and our use thereof as contemplated by this Agreement and the Service will not violate any applicable law or infringe any rights of any third-party, including but not limited to any intellectual property rights and privacy rights. Further, you will ensure that all User Content that you submit, post, provide, or otherwise make available to us is complete, truthful, and accurate when we receive it and, with respect to PII, you will keep such PII up-to-date at all times.
1.9 Privacy and Security
1.10 Use Restrictions
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or nonautomated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to our servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that we grant the operators of public search engines revocable, limited permission to use spiders to copy publicly available materials from our website 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) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (iv) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (v) uploading invalid data, viruses, worms, or other software agents through the Service; (vi) collecting or harvesting any PII from the Service; (vii) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (viii) interfering with the proper working of the Service; (ix) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (x) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein.
2. Our Proprietary Rights
Except for your User Content, the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, and other content of any kind (collectively, “YearEnd Content”), and all intellectual property rights related thereto, are the exclusive property of us and our licensors. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such intellectual property rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any YearEnd Content. Use of YearEnd Content for any purpose not expressly permitted by this Agreement is strictly prohibited.
You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place us under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, we do not waive any rights to use similar or related ideas previously known to us, or developed by its employees, or obtained from sources other than you.
3. Paid Services
Certain aspects of the Service may be provided for a fee or other charge. If you elect to use paid aspects of the Service, you agree to pay the subscription fees set forth below and any add-on or upgrade fees provided within the Service. We may add new services for additional fees and charges, or add or amend fees and charges for existing services, at any time, in our sole discretion. Any change to our pricing and payment terms shall become effective in the billing cycle following notice of such change to you as provided in these Terms.
3.2 Subscription Plans.
The following subscription plans and billing options may be available to you depending on the Service purchased and, if your Employer offers the Service to you as an employee benefit, our relationship with your Employer. Your subscription plan will automatically renew (without the need to go through the Service-interface “check-out”) for successive periods equal in length to the initial subscription period unless you cancel your subscription plan at least five (5) business days prior to the renewal date.
- A monthly subscription plan (“Monthly Subscription Plan”): The subscription period for the Monthly Subscription Plan will be for one month. You will be billed on or about the same day each month until such time that you cancel.
- An annual subscription plan (“Annual Subscription Plan”): The subscription period for the Annual Subscription Plan will be for one year. You will be billed annually on or about the same day each year until such time that you cancel. Be aware that by choosing an Annual Subscription Plan, you are committing to a one-year plan.
In the event your Employer enters into an Employer Agreement with us during your Annual Subscription Plan, you may elect to convert to a subscription under the Employer Agreement. If you select the Annual Subscription Plan, you may not change to the Monthly Subscription Plan unless such change is permitted under an Employer Agreement.
3.3 Payment; Taxes.
We accept various payment methods for purchases through our Service, including Mastercard, Visa, and American Express. We will bill your chosen payment method when you place an order through the Service. We will not fulfill any order without authorization validation of your purchase from your chosen payment method. All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with the Service must be accurate, complete, and current. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with the Service at the prices in effect when such charges are incurred. You will pay all applicable taxes, if any, relating to any such purchases, transactions or other monetary transaction interactions. We currently use Stripe, Inc. (“Stripe”) as our third-party service provider for payment services. By using the Service, you agree to be bound by Stripe’s Services Agreement, available at https://stripe.com/us/legal (or any successor site). You further agree that, for any transaction you make through the Service, Stripe will charge a payment processing fee of 2.9% + US$0.30, and you acknowledge that such payment processing fee is subject to change from time to time, without prior notice to you.
You may cancel your Monthly or Annual Subscription Plan at any time; however, there are no refunds for cancellation. In the event that we suspend or terminate your User Account or this Agreement, you understand and agree that you shall receive no refund or exchange for any unused time on a Monthly or Annual Subscription Plan, any license or subscription fees for any portion of the Service, any content or data associated with your User Account, or for anything else.
You acknowledge and agree that any offers made available through the Service are subject to change at any time and from time to time.
We may, in our sole discretion and without notice, restrict, deny, suspend your User Account or terminate this Agreement for cause, effective immediately, in whole or in part, if we determine that your use of the Service violates the Agreement, is improper, or substantially exceeds or differs from normal use by other Users, raises suspicion of fraud, misuse, security concern, illegal activity, or unauthorized access, to protect the integrity or availability of the Service or systems and comply with our applicable policies, if you no longer agree to receive electronic communications, or if your use of the Service conflicts with our interests or those of another User of the Service.
We may also terminate this Agreement for convenience by providing you written notice; provided that if we terminate this Agreement for convenience, we will refund to you any prepaid amounts for time left on your Monthly or Annual Subscription Plan, as applicable.
On notice to you that your use of the Service has been terminated, you must immediately stop using the Service and any outstanding payments will become due.
5. No Professional Advice
THE SERVICE IS FOR INFORMATION AND EDUCATION PURPOSES ONLY. ALTHOUGH THE SERVICE MAY PROVIDE INFORMATION RELATING TO TAX APPROACHES AND OPPORTUNITIES, WE ARE NOT PROVIDING LEGAL, TAX, INVESTMENT, FINANCIAL OR OTHER ADVICE, RECOMMENDATION, OR ENDORSEMENT THROUGH THE SERVICE AND YOU SHOULD NOT CONSTRUE ANY INFORMATION, FEATURES, TOOLS OR OTHER CONTENT AVAILABLE THROUGH THE SERVICE AS SUCH. YOU ALONE ASSUME THE SOLE RESPONSIBILITY OF EVALUATING THE MERITS AND RISKS ASSOCIATED WITH THE USE OF THE SERVICE BEFORE MAKING ANY DECISIONS BASED ON CONTENT CONTAINED IN THE SERVICE. YOU ARE SOLELY RESPONSIBLE FOR SEEKING YOUR OWN ADVICE, MAKING YOUR OWN INDEPENDENT ASSESSMENT OF THE RISKS AND MAKING YOUR OWN INDEPENDENT DECISIONS. IF YOU ARE UNSURE ON ANY MATTER, YOU SHOULD CONSIDER SEEKING YOUR OWN INDEPENDENT PROFESSIONAL TAX, FINANCIAL AND/OR LEGAL ADVICE. IN EXCHANGE FOR USING THE SERVICE, YOU AGREE NOT TO HOLD YEAREND LIABLE FOR ANY POSSIBLE CLAIM FOR DAMAGES ARISING FROM ANY DECISION YOU MAKE BASED ON INFORMATION MADE AVAILABLE TO YOU THROUGH THE SERVICE.
6. Third-Party Materials
The Service may include features that allow you to import, where applicable, certain information from participating third parties, including payroll processors and equity platforms. You are responsible for verifying the accuracy of the information that is imported. You may provide us with your authorization and information to allow us to obtain your data from third parties on your behalf to use the Services or any third party service that you select. You represent that you have the necessary rights to grant us access to your accounts with third parties.
You agree to defend, indemnify and hold harmless us and our subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (ii) your violation of any third-party right, including without limitation any right of privacy or intellectual property right; (iii) your violation of any applicable law, rule or regulation; (iv) misleading, false, or inaccurate User Content or any other content that is submitted via your User Account; or (v) your negligence or more culpable acts or omissions (including but not limited to your gross negligence, fraud, or willful misconduct).
8. No Warranty
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY FOR INFORMATION, DATA, SERVICES, UNINTERRUPTED ACCESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, OR ANY WARRANTY CONCERNING THE RELIABILITY, AVAILABILITY, ACCURACY, USEFULNESS, QUALITY, OR CONTENT OF INFORMATION, PRODUCTS OR SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, WE, OUR AFFILIATES, AND OUR LICENSORS DO NOT WARRANT THAT: (I) ANY CONTENT PROVIDED VIA THE SERVICE, INCLUDING YEAREND CONTENT, IS ACCURATE, RELIABLE OR CORRECT; (II) THE SERVICE WILL MEET YOUR REQUIREMENTS; (III) THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; (IV) ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR (V) THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT OBTAINED THROUGH THE SERVICE IS OBTAINED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM YOUR USE OF SUCH CONTENT.
FURTHER, WITHOUT LIMITING THE GENERALITY OF SECTION 6 ABOVE, WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY THIRD-PARTY WEBSITES, INFORMATION, MATERIALS, PRODUCTS, OR SERVICES OFFERED BY ANY THIRD-PARTY AND WE ARE NOT A PARTY TO, AND WE WILL NOT IN ANY WAY MONITOR, ANY TRANSACTION BETWEEN YOU AND ANY SUCH THIRD-PARTY.
FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS AND EXCLUSIONS UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
9. Limitation of Liability
YOU UNDERSTAND THAT YEAREND WILL NOT AUDIT OR OTHERWISE VERIFY ANY INFORMATION YOU PROVIDE, AND IS NOT RESPONSIBLE FOR DISALLOWED DEDUCTIONS, OR THE INCLUSION OF ADDITIONAL UNREPORTED INCOME OR RESULTING TAXES, PENALTIES OR INTEREST. YEAREND SHALL NOT BE LIABLE FOR LOSS OF PROFITS OR INVESTMENT, TAX POSITIONS TAKEN BY YOU, INABILITY TO FILE YOUR RETURN, DELAY IN PREPARING YOUR TAX RETURN, INCORRECT OR INCOMPLETE INFORMATION PROVIDED TO YEAREND, ANY ACCESS TO, OR USE OF, YOUR PASSWORD AND USER ID BY AN UNAUTHORIZED PERSON.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE, OUR AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THE SERVICE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY: (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, INCLUDING BUT NOT LIMITED TO YEAREND CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE OR ANY CONTENT AVAILABLE THEREON, INCLUDING BUT NOT LIMITED TO YEAREND CONTENT; (III) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD-PARTY; (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT, INCLUDING BUT NOT LIMITED TO YEAREND CONTENT, OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT, INCLUDING BUT NOT LIMITED TO YEAREND CONTENT; AND/OR (VI) USER CONTENT OR THE CONDUCT OF ANY THIRD-PARTY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE, OUR AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE GREATER OF: (A) THE AMOUNTS YOU ACTUALLY PAID TO US IN THE CALENDAR YEAR IMMEDIATELY PRECEDENT THE EVENT THAT GAVE RISE TO THE LIABILITY; OR (B) $100.00.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
10. Arbitration, Class Waiver, Jury Trial Waiver, Governing Law and Venue
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND YEAREND TO ARBITRATE YOUR DISPUTES AND LIMITS THE AVAILABILITY OF A JURY TRIAL.
Both you and YearEnd agree to resolve by binding arbitration any claim, dispute, or controversy (whether based in contract, tort, statute, or any other legal theory) arising out of or in connection with or relating to (1) the Services, your use of the Services, or the information that you provide us in connection with your use of the Services, or (2) this Agreement, including without limitation, the validity, interpretation, enforcement, or application of this Agreement and/or this Section (collectively, “Claims”). Both you and YearEnd further agree that the arbitrator will also have the exclusive authority to determine all additional threshold arbitrability issues, including without limitation issues relating to whether this Agreement is unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
10.2 Class Action Waiver.
YOU AND YEAREND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY LAW EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT IN ANY REPRESENTATIVE CAPACITY, INCLUDING A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR ANY OTHER REPRESENTATIVE PROCEEDING WHATSOEVER. Further, unless both you and YearEnd agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. Any determination about the validity, interpretation, enforcement, and/or application of this Class Action Waiver paragraph is delegated to the arbitrator.
10.3 Jury Trial Waiver.
YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND YEAREND ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY FOR ANY CLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW.
10.4 Arbitration Procedure.
A party who intends to seek arbitration must first send a written notice of the Claim to the other party by certified mail or Federal Express, or in the event that we do not have a physical address on file for you, by electronic mail (“Notice“). Our address for notice is YearEnd, Inc., Two Embarcadero Center, 8th Floor, San Francisco, CA 94111. You and YearEnd agree to use good faith efforts to resolve the Claim, but if the parties do not resolve the Claim within 30 days of the Notice, then either party may commence arbitration. Any arbitration between you and us will be governed by the American Arbitration Association (“AAA“) Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules“), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting us. Unless you and YearEnd otherwise agree, the arbitration will be conducted in the county where you reside. If your claim is for less than $10,000, we will reimburse your filing fee, unless the arbitrator finds that either the substance of your claim or the relief sought is frivolous or brought for an improper purpose, in which case the payment of all fees will be determined in accordance with the AAA Rules. If your claim is for greater than $10,000, the payment of all fees will be determined in accordance with the AAA Rules. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Notwithstanding anything else in this Agreement to the contrary, you and YearEnd both agree that nothing herein will be deemed to waive, preclude, or otherwise limit either of our rights to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, provided that is the sole form of relief sought, or (iv) to file suit in a court of law to address intellectual property infringement claims.
10.6 Governing Law; Venue.
The parties agree that this Agreement evidences a transaction involving interstate commerce, and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”) and AAA Rules will govern interpretation and enforcement of this Section where applicable. All other claims, disputes, or controversies will be resolved under the laws of the State of California, without respect to its conflict of laws principles. For any claims, disputes or controversies that are not subject to mandatory arbitration under this Section, you and YearEnd agree that (i) the federal and state courts located in San Francisco County, California will be the sole and exclusive forum for resolution of the claim, dispute or controversy, and you and YearEnd irrevocably submit to the jurisdiction of federal and state courts located in San Francisco County, California, and (ii) litigation of any claim, dispute, or controversy proceeding in court will be stayed pending the outcome of any related individual Claim in arbitration.
10.7 Severability; Survival.
If any clause or provision set forth in this Section is determined to be illegal, invalid or unenforceable under present or future law, then the clause or provision so determined to be illegal, invalid or unenforceable will be severable without affecting the enforceability of all remaining clauses or provisions. This Section will survive any termination or expiration of this Agreement.
10.8 Changes and Opt-out.
You may opt out of the applicability of this Section by providing us with a written opt-out notice within 30 days of the “Last Modified” date above. This written notice must be provided by mail to YearEnd, Inc., Two Embarcadero Center, 8th Floor, San Francisco, CA 94111. In order to be effective, this notice must include your full name and clearly indicate your intent to reject the changes to this Agreement.
11.1 Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by us without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
11.2 Notification Procedures and Changes to the Agreement. We may provide notifications, whether such notifications are required by law or are for marketing or other business-related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on the Service, as determined by us in our sole discretion. We reserve the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement. We are not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. We may, in our sole discretion, modify or update this Agreement from time to time, and so you should review this page periodically. When we change the Agreement in a material manner, we will update the ‘last modified’ date at the top of this page and notify you that material changes have been made to the Agreement. Your continued use of the Service after any such change constitutes your acceptance of the new Terms of Service. If you do not agree to any of these terms or any future Terms of Service, do not use or access (or continue to access) the Service.
11.3 Entire Agreement/Severability. This Agreement, together with any amendments and any additional agreements you may enter into with us in connection with the Service, shall constitute the entire agreement between you and us concerning the Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
11.4 No Waiver. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and our failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
11.5 California Residents. The provider of services is: YearEnd, Inc., Two Embarcadero Center, 8th Floor, San Francisco, CA 94111, (415) 943-0128. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
11.6 Contact. Please contact us at [email protected] with any questions regarding this Agreement.