1. Introduction
1.1 This Online Services Agreement ("Agreement") is a contract between you and Smart Financial Tax Services and Smart Financial Tax Services , Inc. (together, "Smart Financial Tax Services ", "we", or "us" ). This Agreement governs your use of Products and Services (defined in Section 15) provided by Smart Financial Tax Services , Smart Financial Tax Services Affiliates (defined in Section 15), and Smart Financial Tax Services 's third party independently owned franchisees.
1.2 Be sure that you carefully read and fully understand this Agreement.
(A) You may use Smart Financial Tax Services 's Products and Services only if you agree to all the terms of the Agreement.
(B) You are considered to have agreed to all the terms of the Agreement if you check your acceptance of the terms of the Agreement during the creation of your account, or you otherwise access, copy, or use any Products and Services.
(C) You do not have the right to access and use the Products and Services if you do not agree to the terms of this Agreement
1.3 THIS AGREEMENT INCLUDES A MUTUAL BINDING ARBITRATION AGREEMENT IN SECTION 11 THAT REQUIRES RESOLUTION OF DISPUTES BY INDIVIDUAL ARBITRATION UNLESS YOU OPT-OUT AS PROVIDED IN SECTION 11.
2. Your Use of The Products and Services
2.1 Your licensed and permitted use. Smart Financial Tax Services grants you a non-exclusive, non-transferrable, non-sublicenseable, and limited license to access and use the Products and Services for your individual personal and/or internal business purposes under the terms, conditions, and limitations set forth in this Agreement and payment of all applicable fees. Smart Financial Tax Services reserves any and all rights not expressly granted to you in this Agreement.
2.2 Your account.
(A) Creating your account. You will be required to register and create an account with us to access certain features of the Products and Services. You will be assigned or will select a username and password through the registration process. By creating an account, you consent to receive e-mail correspondence from Smart Financial Tax Services regarding your account or your use of the Products and Services.
(B) Accurate information. By registering or creating an account to use the Products and Services, you represent and warrant that your information is true and accurate to the best of your knowledge. You agree not to submit false information such as name, email, address, or telephone number when registering for an account to use the Products and Services.
(C) Business Users. You represent and warrant through your registration and your use of the Products and Services that you have the authority of your company to participate and use the Products and Services on its behalf. Thus, you and your company are responsible for all activity occurring under your account.
2.3 Maintaining the security of your account. You are responsible for all use of the Products and Services under your account.
(A) Account protection. You are responsible for setting up and keeping confidential your account, username, password, Quick Access, and other sensitive information. You must take security precautions with at least reasonable and prudent care.
(B) Quick Access protection. Quick Access is an alternative method you may use to sign into your account to use the Products and Services. You may use alternative credentials like your fingerprint or biometrics to sign into your account.
(1) Enable and disable Quick Access. You may choose to enable or disable Quick Access on your device at any time by signing into your account and using the Settings Menu.
(2) Only you may use Quick Access to sign into your account. You must never allow others to use Quick Access on your device. If someone other than yourself is authorized to use your device with a fingerprint or other biometric, you must remove any access to your device by someone other than yourself.
(C) Unauthorized use of the Products and Services. You will notify us immediately of any unauthorized use of the Products and Services including use of your account, username, password, Quick Access, or any other security breach of which you are aware.
(1) Notification of unauthorized use. We will have no liability to you for any unauthorized access or transaction made using your account, username, password, or Quick Access that occurs before you have notified us of possible unauthorized use and we have had a reasonable opportunity to act on that notice.
(2) Suspension of your account. If we suspect any unauthorized or fraudulent use, we may suspend or cancel your account, username, password, or Quick Access even without receiving notice from you or report such use to the authorities.
(D) Your equipment. You are solely responsible for all device and network security for devices used to access and use the Products and Services, including but not limited to any active firewall, anti-virus software, and anti-spyware software necessary to secure and protect any proprietary or confidential information that you provide, store, submit, send, or disclose directly or indirectly with your use of the Products and Services.
2.4 Conditions of Use.
(A) Minimum Age. You must be 18 years of age or older to use the Products and Services. You represent you are 18 years of age or older.
(B) Payment of Applicable Fee. Your use of the Products and Services may require you to pay a fee to Smart Financial Tax Services , and your use of certain Products and Services may be conditioned upon paying the applicable fee for such Products and Services. If Smart Financial Tax Services processes your payments using a third-party payment processor, such payments will be governed by the third-party payment processor's terms of use and privacy policy. If you obtain a Refund Transfer, your fees are not due until after all services are complete, which is typically when your refund is received and your authorized payments are disbursed, but in any event, no more than 30 days after your tax return is e-filed.
(C) Prohibited use. You must not, directly or indirectly use the Products and Services in a way that is a Prohibited Use (as defined in Section 15).
(D) Additional limitations. Specific limitations to each of the Products and Services are explained further in Section 6.
2.5 You are responsible for the accuracy and completeness of information.
(A) Tax returns you file. You will be the preparer of any tax return filed using the Products and Services (except for Tax Pro Review in Section 6.5 and Assisted Tax Preparation in Section 6.8). You have the sole responsibility and liability for reviewing and verifying all tax returns and results from the Products and Services for accuracy and completeness, and for verifying that all required forms have been filed with the IRS or applicable Revenue Authority, including forms that are supported by the Products and Services.
(B) Information you provide. You represent that all information you provide is accurate, consistent, and complete and that you have the right to provide the information to us. You understand that we are relying upon information provided by you (including information on source documents), and we do not independently verify information that you provide. It is your responsibility to substantiate the basis for any claimed credits, deductions, or expenses. You grant Smart Financial Tax Services a perpetual and royalty-free license to reproduce, use, store, and process any information that you provide, including Tax Information and other personal information in accordance with Section 4, including but not limited to, (1) as necessary for Smart Financial Tax Services to provide the Products and Services, and (2) in a de-identified and aggregated format throughout the world for any purpose. If you provide, or we reasonably believe you have provided, information that is false, incorrect, incomplete, pornographic, or improper, we have the right to delete the information, suspend any of your accounts, and refuse all current or future use of the Products and Services.
2.6 User Content.
(A) User Content. Some Products and Services may provide you the opportunity to contribute User Content in User Areas. You will not provide any User Content that is a Prohibited Use or that violates any intellectual property right of any third party.
(B) License to User Content. You grant Smart Financial Tax Services a perpetual and royalty-free license to reproduce, use, store, and process your User Content throughout the world for any purpose without any compensation or remuneration to you. You acknowledge that Smart Financial Tax Services may preserve and disclose User Content if required to do so by law or we believe in good faith that such preservation or disclosure is reasonably necessary to comply with legal process, enforce this Agreement, respond to a claim that User Content violates any third party's rights, or protect the right, property or personal safety of Smart Financial Tax Services , any users of the Products and Services, and the public.
(C) No Monitoring of User Content. Smart Financial Tax Services does not assume any obligation to review, screen, or approve the User Content. However, Smart Financial Tax Services may, in its sole discretion, remove any User Content from a User Area at any time and for any or no reason.
2.7 Your export restrictions. You will not export the Products and Services or other materials provided by us without obtaining Smart Financial Tax Services 's prior written consent.
2.8 Compliance with applicable laws. You are solely responsible for compliance with all applicable laws, regulations, statutes, ordinances, and governmental authority rules regarding your use of the Products and Services, including those related to data privacy, international communications and the transmission of personal data.
2.9 Unauthorized use of the Products and Services. You are responsible for all use of the Products and Services and compliance with this Agreement. You have all responsibility and liability for any breach of this Agreement by you or any user under your account.
3. Intellectual Property Rights The Products and Services, modifications, copyrights, patents, trade secrets, trademarks, and other intellectual property rights pertaining to any aspect of the Products and Services are our exclusive property. You acquire no ownership interest, derivative work, or component of the Products and Services through your use of the Products and Services. You are not granted right, title, or interest to any trademark, service mark, logo, or trade name of Smart Financial Tax Services under this Agreement.
4. Your Privacy
4.1 Our Privacy Notice. Your use of the Products and Services is subject to our Privacy Notice, available at:
https://www.smartfinancialtax.com/privacy-policy
4.2 Changes to our Privacy Notice. Consistent with applicable law, we reserve the right to change the Privacy Notice at any time. If we make a material change to the Privacy Notice, we will
(A) post a notice on our web site describing the change, or
(B) send you an electronic notification of the change.
4.3 Your Tax Information. Through your use of the Products and Services, you may be required or requested to supply certain Tax Information or other personal financial information.
(A) E-file. If you e-file your tax return, we will collect and send your Tax Information through our affiliated electronic transmitter to the Revenue Authority that you designate. In compliance with applicable law, we will keep an electronic copy of your Tax Information, including e-filing details and status.
(B) Errors. We may alert and provide information to Revenue Authorities to correct or identify errors in the Software.
5. Your Access to Products and Services
5.1 Cancelation or modification of Products and Services. We reserve the right to: change the Products and Services at any time, without notice, and for any reason; or cancel or terminate your use of the Products and Services if you violate this Agreement. We will not be liable to you or any third party for any modification or discontinuance of Products and Services.
5.2 Technical difficulties. We cannot always anticipate technical or other difficulties. These difficulties may result in loss of your data, personal settings, or other interruptions to the Products and Services. We have no responsibility for the timeliness, deletion, mis-delivery, or failure to store any data, communications, or personal settings with the Products and Services.
6. The Products and Services
6.1 2022 Software.
(A) Software limitations. The Software may be used only for the following:
(1) prepare and e-file your U.S. federal personal tax returns;
(2) prepare and provide information for your personal state tax returns;
(3) e-file your personal state tax returns;
(4) prepare and file your U.S. federal business tax return; and
(5) prepare and provide information for your business state tax returns.
(B) Smart Financial Tax Services will make commercially reasonable efforts to keep the Software available to you until October 15, 2023.
6.2 Electronic Filing (e-file).
(A) Your responsibility. You are solely responsible for verifying that your tax returns have been filed and received by the applicable Revenue Authorities. You are responsible for taking appropriate alternative actions if necessary to ensure the Revenue Authority receives your tax return, and for retaining a copy of your tax returns for your records.
(B) State requirements. The ability to e-file your state tax return depends on the policy of each individual state. As such, e-filing may not be available in some states. Some states may require you to e-file your personal federal and state tax returns at the same time.
(C) Our limited responsibility to e-file. If an Smart Financial Tax Services tax professional does not file your tax return and you select, qualify for, and pay applicable fees, our only responsibility with respect to e-filing your tax return is limited to using commercially reasonable efforts to send your tax return electronically to the Revenue Authority.
6.3 MyBlock ℠ Account and related functions on the MyBlock Mobile Application ("MyBlock"). MyBlock is an online portal that allows you to manage information, interface with a tax professional, and access different Products and Services. You may also manage this information or access this functionality from the Smart Financial Tax Services Mobile App. The MyBlock My Documents feature is provided as a service to enable customers to utilize Smart Financial Tax Services 's tax preparation and financial products or services. Any document or personal information you upload may be shared with your tax professional to assist in the preparation of your tax return or to otherwise provide the Products and Services to you. You are prohibited from storing any documents or files that do not relate to tax preparation or financial products or services ("Unrelated Files"). Smart Financial Tax Services reserves the right to delete without notice Unrelated Files stored in My Documents.
(A) Examples of personal information. Examples of your personal information you can manage in MyBlock include:
(1) contact information;
(2) Tax Information and supporting documentation;
(3) tax return status;
(4) previous year's tax returns;
(5) healthcare information;
(6) Communications (as defined below);
(7) financial products information and access; and
(8) any information you add about yourself and store for future use subject to this Agreement.
6.4 Online Assist ("Online Assist"). Online Assist allows you to submit a tax-related question and receive a response from Smart Financial Tax Services or franchisee tax professionakls (collectively Online Assist Providers) through a chat function on a website designated by us, or sharing your screen with the Online Assist Providers in some instances.
(A) Online Assist limitations. Online Assist is limited to your personal and non-commercial use and you will not use Online Assist to obtain information for any person or entity other than you. You must not use the information provided for any purpose except for the preparation of your tax return. Online Assist is limited to U.S. tax issues. Online Assist does not include solutions to payroll tax questions or questions about the tax law applicable to estates, trusts, corporations, partnerships, gifts, and tax exempt organizations. Online Assist is limited to responding to specific tax questions and does not include a general review of your tax return or preparation of any part of your tax return. Although tax return preparation services are not available through Online Assist, we offer tax return preparation services through other offerings such as Tax Pro Review. The Online Assist Provider will not be responsible for the review of any source documentation. If you share your screen with the Online Assist Providers, they will not have control over your screen but may be able to highlight specific areas for your attention. The ability to share your screen with the Online Assist Provider may not be available. Online Assist is only available during specific hours which will be provided to you .
(B) Our response to your request. Because proper guidance varies based upon individual circumstances, sometimes the Online Assist Provider's response will not be a direct or complete answer. Instead, the response could be a reference to applicable Revenue Authority that the Online Assist Provider believes is appropriate in consideration of the information that you have provided. It is your responsibility to interpret the regulations and their applicability to your situation or to engage a professional to assist you in this interpretation.
(1) Our response time. Online Assist Providers attempt to respond to your question or request as soon as possible and within 48 hours. Response times vary. Responses may be provided to you later than 48 hours due to increased volume of inquiries, technical problems, complexity or nature of your request, or your failure to provide the necessary information to answer the request. If your request is not answered within 48 hours, we agree to use commercially reasonable efforts to provide Online Assist in a timely manner if you cooperate with Online Assist Provider as necessary to provide the information requested.
(2) Our right to refuse a request. The Online Assist Provider reserves the right to refuse any request and refund you any fee paid for Online Assist.
(C) We recommend that you consult with applicable advisors. Online Assist and the Online Assist Providers are not providing you any legal advice, financial advice, tax preparation services, or investment recommendations. It is recommended that you consult with your own legal, financial, tax, and investment advisors where appropriate.
6.5 Tax Pro Review. If you select and pay for the Tax Pro Review service, Smart Financial Tax Services or franchisees (collectively, Tax Pro Review Providers) may provide tax advice, review a tax return you have prepared, prepare your tax return using information you have provided, and e-file your tax return with the Revenue Authority, as applicable.
(A) Your responsibilities. You must cooperate with the Tax Pro Review Providers, provide all information and copies of all documents requested, and review information provided by your Tax Pro Review Providers in a timely manner that is reasonably in advance of any applicable tax filing deadlines.
(1) If you complete the requirements in (A) above and otherwise comply with the terms of this Agreement, we agree to use commercially reasonable efforts to provide the Tax Pro Review service you have selected and paid for.
(2) If you do not complete the requirements in (A) above, or the information provided is inaccurate, inconsistent or incomplete, your tax return may be inaccurate or incomplete, and any guarantee offered by us will be void.
(B) Additional fees. The Tax Pro Review Provider may charge an additional hourly service fee for manual data entry, tax schedules, or any other service.
(C) Bill of Rights. If you reside in Chicago, you can find the Chicago Bill of Rights Regarding Tax Preparation Services
.
If you reside in New York state, you can find the New York Consumer Bill of Rights Regarding Tax Preparers
.
If you reside in New York City, you can find the New York City Consumer Bill of Rights Regarding Tax Preparers
.
6.6 Automatic Importing of Tax Information. We may enter agreements with certain financial institutions or other service providers that will allow you to electronically import Tax Information directly into the Software.
(A) Access to Tax Information. If you elect to use Automatic Importing of Tax Information, you will be using the financial institution or other service provider's data systems to transfer your Tax Information into the Software. Thus, by requesting such automatic transfer of your Tax Information, you consent to Smart Financial Tax Services accessing, transmitting, and storing your Tax Information.
(B) Accuracy and availability of information. We do not represent or guarantee that Automatic Importing of Tax Information will be available or accurate. It is your responsibility to review the accuracy of all information in your tax return, including information imported from the Automatic Importing of Tax Information.
6.7 Healthcare Subsidy Reconciliation and Penalty Calculation.
(A) Healthcare specific software. The Software will calculate any healthcare subsidy reconciliation and any penalty you are required to pay because of a lack of healthcare coverage.Additionally, the Software will:
(1) e-file or include in the printout IRS Form 8962;
(2) automatically include the calculated reconciliation or penalty amount into your refund or amount you owe; and
(3) e-file or include in the printout IRS Form 8965 if you already have a penalty exemption number.
(B) Filing of your penalty. You are required to file the penalty exemption application with the IRS. Although the Software may pre-fill a penalty exemption application, we will not and are not required to file the penalty exemption application for you.
(C) Your eligibility for other guarantees. Accurate Calculations Guarantee and Maximum Refund Guarantee discussed in Sections 7.1 and 7.2 below do not apply to any refund, penalty, or interest amount altered by a penalty exemption that is granted after the original tax return was filed.
6.8 Assisted Tax Preparation Service. If you select and pay for virtual assisted tax preparation with a tax professional (Assisted Tax Preparation), we will prepare your 2022 federal and state tax returns using information you have provided, and e-file your tax returns with the Revenue Authority, as applicable.
(A) Process. You will provide us with initial information about you and your tax situation, and we will assign you a tax professional. You will then provide us with your personal information, including but not limited to your name, birthdate, SSN, phone number, and email address and drop off your tax documents at a local office or upload your tax documents either to your MyBlock account or through our secure message center. After we receive your documents, the tax professional will contact you to gather additional information. The tax professional will work to complete your federal and state tax returns. You will then pay for and review the tax returns to make sure the returns are complete and accurate, and if you approve the returns, we will electronically file them for you. You will be required to use a MyBlock account to use the Assisted Tax Preparation.
(B) Bill of Rights. If you reside in Chicago, you can find the Chicago Bill of Rights Regarding Tax Preparation Services here and Chicago Disclosure Form
.
If you reside in New York state, you can find the New York Consumer Bill of Rights Regarding Tax Preparers
.
If you reside in New York City, you can find the New York City Consumer Bill of Rights Regarding Tax Preparers
.
By accepting this Agreement, you acknowledge receipt of the linked documents. Your tax professional can answer questions regarding these Bills of Rights.
(C) Assisted Tax Preparation Limitations. Assisted Tax Preparation cannot be transferred to others. The Assisted Tax Preparation is not available to you if you are under eighteen (18) years of age. You understand and agree that we are not engaged in rendering legal services or other advice, and Assisted Tax Preparation is not legal advice, financial advice, or investment recommendations. You understand that we are relying upon information provided by you, including information on source documents, and we do not independently verify information provided by you. However, we may ask you for further clarification and expect you to provide that clarification promptly and candidly. We assume no responsibility for adverse consequences due to your failure to provide information to us in a timely fashion. We are not responsible for providing any services under Assisted Tax Preparation if you fail to fully comply with any of your Duties listed in Section 6.8(D) and elsewhere in this Agreement. If your tax professional receives your information within 10 days of the filing deadline, you may be required to file an extension, or we may be unable to provide Assisted Tax Preparation.
(D) Your Duties.
(1) Provide Information. You must provide us with accurate,consistent, and complete information that we request to provide or supply you with one or more of the benefits associated with Assisted Tax Preparation which may include, without limitation your name, address, telephone number, email address, Social Security number, income documents (W2, 1099, etc.), deduction and credit documentation, receipts, and other personal information. You will provide this information by dropping of your documents at your local office, uploading relevant documents to you MyBlock account or through the MyBlock mobile app, or to your tax professional through the secure message center. If we are unable to obtain the requiredpersonal information from you, Assisted Tax Preparation may be unavailable, limited, or reduced.
(2) Review and Approve Returns. After your tax professional completes your federal and state tax returns, you must review and approve all returns before your tax professional can file your tax returns for you. We will not file any tax returns unless we receive your approval. If you identify any errors in your tax return during your review (and before you approve), your tax professional will work with you to correct any errors.
(3) Payment. We will not file any tax returns until we receive payment for your tax returns (or you agree to the appropriate paperwork if you are paying for your tax preparation fees with your refund).
(4) Tax Payment. YOU HAVE THE OBLIGATION TO PAY ALL YOUR TAX LIABILITY FOR CURRENT AND FUTURE TAX YEARS, INCLUDING PAYMENT OF PROPER WITHHOLDINGS AND QUARTERLY ESTIMATED TAX PAYMENTS, AND TO COMPLY WITH ALL FILING REQUIREMENTS DURING AND SUBSEQUENT TO OUR ASSISTED TAX PREPARATION SERVICES.
8. Disclaimer of Warranties
8.1 General Disclaimer. OTHER THAN THOSE EXPRESS WARRANTIES AND GUARANTEES SET FORTH IN THIS AGREEMENT, Smart Financial Tax Services , Smart Financial Tax Services AFFILIATES, AND FRANCHISEES MAKE NO WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE PRODUCTS AND SERVICES.
(A) Disclaimer of implied warranty. WITHOUT LIMITING THE PRECEDING SENTENCE AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT ANY IMPLIED WARRANTIES SUCH AS THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXCLUDED FROM YOUR LICENSE AND USE OF THE PRODUCTS AND SERVICES. SOME STATES, INCLUDING NEW JERSEY, DO NOT ALLOW EXCLUSIONS OR LIMITATIONS OF IMPLIED WARRANTIES. IF YOU LIVE IN ONE OF THESE STATES, THE ABOVE LIMITATIONS DO NOT APPLY TO YOU AND IN SUCH CASE, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO THE MINIMUM PERMISSIBLE UNDER APPLICABLE LAW FROM THE DATE YOU FIRST ACCESSED, USED OR ACQUIRED THE PRODUCTS AND SERVICES
(B) Disclaimer of express warranty. OTHER THAN EXPRESSLY PROVIDED IN THIS AGREEMENT, Smart Financial Tax Services , Smart Financial Tax Services AFFILIATES, AND FRANCHISEES DO NOT WARRANT OR PROMISE THAT THE PRODUCTS AND SERVICES WILL IDENTIFY THE APPROPRIATE DOCUMENTS FOR YOUR NEEDS, THAT THE OPERATION OF THE PRODUCTS AND SERVICES WILL BE UNINTERRUPTED, OR THAT THE PRODUCTS AND SERVICES ARE FREE FROM BUGS OR ERRORS. OTHER THAN EXPRESSLY PROVIDED IN THIS AGREEMENT, Smart Financial Tax Services , Smart Financial Tax Services AFFILIATES, AND FRANCHISEES MAKE NO OTHER PROMISES ABOUT THE PERFORMANCE, ACCURACY, OR RELIABILITY OF THE PRODUCTS AND SERVICES OR THEIR ABILITY TO MEET YOUR REQUIREMENTS. WHILE Smart Financial Tax Services , Smart Financial Tax Services AFFILIATES, AND FRANCHISEES ARE PROVIDING THE PRODUCTS AND SERVICES TO ASSIST YOU IN PREPARING AND FILING YOUR TAX RETURNS AND OTHER FUNCTIONS, THE PRODUCTS AND SERVICES DO NOT REPLACE YOUR OBLIGATION TO EXERCISE YOUR INDEPENDENT JUDGMENT IN USING THE PRODUCTS AND SERVICES. YOU ARE SOLELY RESPONSIBLE FOR CORRECTLY INPUTTING YOUR INFORMATION INTO THE PRODUCTS AND SERVICES AND FOR VERIFYING ALL OUTPUTS RESULTING FROM YOUR USE OF THE PRODUCTS AND SERVICES. OTHER THAN EXPRESSLY PROVIDED IN THIS AGREEMENT, Smart Financial Tax Services , Smart Financial Tax Services AFFILIATES, AND FRANCHISEES DO NOT WARRANT ANY PARTICULAR RESULTS THAT YOU MAY OBTAIN IN USING THE PRODUCTS AND SERVICES.
8.2 The Products and Services are not legal advice. YOU ACKNOWLEDGE THAT Smart Financial Tax Services AND ITS RESPECTIVE LICENSORS, Smart Financial Tax Services AFFILIATES, AND FRANCHISEES DO NOT PRACTICE LAW NOR ARE THEY PROVIDING OR RENDERING ANY SUCH LEGAL ADVICE, FINANCIAL ADVICE, OR INVESTMENT RECOMMENDATIONS. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE PRODUCTS AND SERVICES ARE NOT SUBSTITUTES FOR THE ADVICE OF AN ATTORNEY OR OTHER COMPETENT FINANCIAL PROFESSIONAL. YOU FURTHER ACKNOWLEDGE AND AGREE THAT LAWS VARY FROM STATE TO STATE AND CHANGE OVER TIME AND THAT THE FINAL DOCUMENTS, FORMS AND LETTERS SHOULD BE REVIEWED BY AN ATTORNEY OR OTHER COMPETENT FINANCIAL PROFESSIONAL BEFORE USE AND BEFORE YOU FILE YOUR TAX RETURN.
9. Limitations on Liability and Damages
9.1 Exclusive remedy. EXCEPT AS EXPRESSLY PERMITTED BY SECTION 7, YOUR EXCLUSIVE REMEDY AND THE ENTIRE LIABILITY OF Smart Financial Tax Services AND ITS LICENSORS, Smart Financial Tax Services AFFILIATES AND FRANCHISEES WITH RESPECT TO YOUR USE OF THE PRODUCTS AND SERVICES WILL BE LIMITED TO THE AMOUNT PAID BY YOU TO Smart Financial Tax Services FOR THE PRODUCTS AND SERVICES. IN NO EVENT WILL Smart Financial Tax Services , Smart Financial Tax Services AFFILIATES, LICENSORS OR FRANCHISEES BE LIABLE TO YOU, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, FOR ANY TAX LIABILITIES OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOST DATA, LOST PROFITS OR BUSINESS, LOSS OF USE, OR FOR ANY CLAIM OR DEMAND AGAINST YOU BY ANY OTHER PARTY, EVEN IF Smart Financial Tax Services OR Smart Financial Tax Services AFFILIATES, LICENSORS OR FRANCHISEES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
9.2 No additional liability. You agree that Smart Financial Tax Services , Smart Financial Tax Services Affiliates, licensors and franchisees will not at any time have any additional liability for any claim, cause of action or injury that you or any other person may have as a result of: (1) your use of, or inability to use, the Products and Services; (2) your use of any documents generated by the Products and Services; (3) your retention of, or your failure to consult or retain, an attorney or other competent professional with respect to any contract, document or legal matter; (4) connection or toll charges for using the Products and Services or obtaining updates for the Products and Services; or (5) any fees, costs or expenses arising out of troubleshooting or technical support for the Products and Services.
9.3 States excluded. SOME STATES, INCLUDING NEW JERSEY, DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES. IF YOU LIVE IN ONE OF THESE STATES, THE ABOVE LIMITATION OR EXCLUSION DOES NOT APPLY TO YOU.
9.4 Essential purpose of this agreement. You agree that the essential purposes of this Agreement may be fulfilled even with these limitations on liabilities. You acknowledge that Smart Financial Tax Services would not be able to offer the Products and Services on an economical basis without these limitations.
10. Indemnification You agree to defend and hold harmless Smart Financial Tax Services , Smart Financial Tax Services Affiliates, their franchisees and their respective current and former successors, assigns, officers, directors, representatives, employees, and agents from and against any and all claims, suits, settlements, losses, liabilities, penalties, damages (including incidental and consequential damages), costs, and expenses (including reasonable attorneys' fees and expenses) resulting from or arising out of your breach of this Agreement or your User Content.
11. ARBITRATION IF A DISPUTE ARISES ("Arbitration Agreement")
11.1 Scope of Arbitration Agreement. You and the Smart Financial Tax Services Parties agree that all disputes and claims between you and the Smart Financial Tax Services Parties shall be resolved through binding individual arbitration unless you opt out of this Arbitration Agreement using the process explained below. However, to the fullest extent permitted by applicable law, either you or the Smart Financial Tax Services Parties may elect that an individual claim be decided in small claims court, as long as it is brought and maintained as an individualized claim. All issues are for the arbitrator to decide, except that issues relating to the arbitrability of disputes and the validity, enforceability, and scope of this Arbitration Agreement, including the interpretation of sections 11.2, 11.4, and 11.6 below, shall be decided by a court and not an arbitrator. The terms "Smart Financial Tax Services Parties" or" we" or" us" in this Arbitration Agreement include Smart Financial Tax Services , Smart Financial Tax Services ., and Emerald Financial Services, LLC; their direct or indirect parents, subsidiaries, and affiliates; and the predecessors, successors, officers, directors, agents, employees, and franchisees of any of them.
11.2 Commencing arbitration. You or we may commence an arbitration proceeding only if you and we do not reach an agreement to resolve the dispute or claim during the Informal Resolution Period (defined below).
(A) Pre-arbitration notice of dispute. A party who intends to seek arbitration must first mail a written Notice of Dispute ("Notice") to the other party. The Notice to the Smart Financial Tax Services Parties should be addressed to: Smart Financial Tax Services -Legal Department, Attention: Notice of Dispute, One Smart Financial Tax Services . The Notice must be on an individual basis and include all of the following: (1) the claimant's name, telephone number, and e-mail address; (2) the nature or basis of the dispute or claim; and (3) the specific relief sought.
(B) Informal Settlement Conference. After the Notice containing all of the information required above is received, within 60 days either party may request a conference to discuss informal resolution of the dispute ("Informal Settlement Conference"). If timely requested, the Informal Settlement Conference will take place at a mutually agreeable time by telephone or videoconference. You and our business representative must both personally participate in a good-faith effort to settle the dispute without the need to proceed with arbitration. The requirement of personal participation in an Informal Settlement Conference may be waived only if both you and we agree in writing. Any counsel representing you or us may also participate; however, if you have retained counsel, a signed statement is required by law to authorize the Smart Financial Tax Services Parties to disclose your confidential tax and account records to your counsel. Any applicable statute of limitations will be tolled during the period between the date that either you or we send the other a fully complete Notice, until the later of (1) 60 days after receipt of the Notice; or (2) if a Settlement Conference is timely requested, 30 days after completion of the Settlement Conference (the "Informal Resolution Period"). The parties agree that the existence or substance of any settlement discussions shall not be disclosed.
(C) Enforcement of pre-arbitration requirements. A court will have the sole authority to enforce this section 11.2, including the power to enjoin the filing or prosecution of an arbitration if you or we do not first provide a fully complete Notice and participate in a timely requested Informal Settlement Conference.
11.3 How arbitration works. Arbitration shall be conducted by the American Arbitration Association ("AAA") pursuant to its Consumer Arbitration Rules ("AAA Rules"), as modified by this Arbitration Agreement. AAA Rules are available on AAA's website www.adr.org, or by calling AAA at (800) 778-7879. If AAA is unavailable or unwilling to administer the arbitration consistent with this Arbitration Agreement, the parties shall agree to, or the court shall select, another arbitration provider. Unless the parties agree otherwise, any arbitration hearing shall take place in the county of your residence. If you accept this Agreement outside the United States, the arbitration hearing shall take place in the county in which you last resided in the United States. The arbitrator will be either a retired judge or an attorney specifically licensed to practice law in the state of your residence and selected by the parties from the arbitration provider's national roster of arbitrators. The arbitrator will be selected using the following procedure: (1) the arbitration provider will send the parties a list of five candidates meeting this criteria; (2) if the parties cannot agree on an arbitrator from the list, each party shall return its list to the arbitration provider within 10 days, striking up to two candidates, and ranking the remaining candidates in order of preference; (3) the arbitration provider shall appoint as arbitrator the candidate with the highest aggregate ranking; and (4) if for any reason the appointment cannot be made according to this procedure, the arbitration provider will provide the parties a new list of five candidates meeting the above criteria until an appointment can be made.
11.4 Waiver of right to bring class action and representative claims. All arbitrations shall proceed on an individual basis. The arbitrator is empowered to resolve the dispute with the same remedies available in court, including compensatory, statutory, and punitive damages; attorneys' fees; and declaratory, injunctive, and equitable relief. However, the arbitrator's rulings or any relief granted must be individualized to you and shall not apply to or affect any other client. The arbitrator is also empowered to resolve the dispute with the same defenses available in court, including but not limited to statutes of limitation. You and the Smart Financial Tax Services Parties also agree that each may bring claims against the other in arbitration only in your or their respective individual capacities and in so doing you and the Smart Financial Tax Services Parties hereby waive the right to a trial by jury, to assert or participate in a class action lawsuit or class action arbitration, to assert or participate in a private attorney general lawsuit or private attorney general arbitration, and to assert or participate in any joint or consolidated lawsuit or joint or consolidated arbitration of any kind. If a court decides that applicable law precludes enforcement of any of this section's limitations as to a particular claim or any particular request for a remedy for a claim (such as a request for public injunctive relief), then the parties agree that the particular claim or the particular request for a remedy (and only that particular claim or particular request for a remedy) must remain in court and be severed from any arbitration. No arbitration shall proceed in any manner as a class action arbitration, private attorney general arbitration, or arbitration involving joint or consolidated claims, unless all parties consent in writing.
11.5 Arbitration costs. Payment of all filing, administrative, arbitrator, and hearing fees will be governed by AAA Rules, but if you inform us that you cannot afford to pay your share of the fees, we will consider advancing those fees on your behalf. In addition, we will reimburse you for your share of the fees at the conclusion of the arbitration (regardless of who wins), so long as (i) you complied with sections 11.2 and 11.4 above and section 11.6 below, and (ii) neither the substance of your claim nor the relief you sought was determined to be frivolous or brought for an improper purpose as measured by the standards set forth in Federal Rule of Civil Procedure 11(b); otherwise, the payment of fees will be governed by AAA Rules and you agree to reimburse the Smart Financial Tax Services Parties for all fees advanced on your behalf.
11.6 Arbitration of similar claims. If 25 or more claimants submit Notices raising similar claims and are represented by the same or coordinated counsel, all of the cases must be resolved in arbitration in stages using staged bellwether proceedings if they are not resolved during the Informal Resolution Period. The parties agree that the individual resolution of claims in arbitration might be delayed if the claims are pursued in connection with 25 or more similar claims. In the first stage, the parties shall each select up to 10 cases per side (20 cases total) to be filed in arbitration and resolved individually in accordance with this Arbitration Agreement, with each case assigned to a separate arbitrator. In the meantime, no other cases may be filed in arbitration. If the parties are unable to resolve the remaining cases after the conclusion of the first stage bellwether proceeding, each side may select up to another 10 cases per side (20 cases total) to be filed in arbitration and resolved individually in accordance with this Arbitration Agreement. During this second stage, no other cases may be filed in arbitration. This process of staged bellwether proceedings shall continue until the parties are able to resolve all of the claims, either through settlement or arbitration. If the filing procedures in this section 11.6 apply to a claimant's Notice, any statute of limitations applicable to the claims set forth in that Notice will be tolled from the time the first cases are selected for a bellwether proceeding until the claimant's Notice is selected for a bellwether proceeding, withdrawn, or otherwise resolved. A court will have the sole authority to enforce this section 11.6 and, if necessary, to enjoin the filing or prosecution of arbitrations.
11.7 Other terms. This Arbitration Agreement shall be governed by, and interpreted, construed, and enforced in accordance with, the Federal Arbitration Act and other applicable federal law. Except as set forth above in section 11.4, if any portion of this Arbitration Agreement is deemed invalid or unenforceable, it will not invalidate the remaining portions of the Arbitration Agreement. Notwithstanding any provision in this Agreement to the contrary, we will not make any material change to this Arbitration Agreement without providing you with an opportunity to reject that change by following the directions in the notice of changes. Rejection of any future change will not impact this or any other arbitration agreement between you and the Smart Financial Tax Services Parties. No arbitration award or decision will have any preclusive effect as to any issues or claims in any dispute, arbitration, or court proceeding where any party was not a named party in the arbitration, unless and except as required by applicable law.
13. Termination of this Agreement
Without prejudice to any other rights, Smart Financial Tax Services may immediately terminate this Agreement if you fail to comply with these terms and conditions. Upon termination of this Agreement, you must immediately stop use and access to the Products and Services. All provisions of this Agreement that are intended to survive or that must survive in order to give effect to its meaning (including, but not limited to, the provisions of Sections 3, 8, 9, 10, 11, and 14) will survive the termination or expiration of this Agreement.
14. Other
14.1 Governing law. Except as otherwise provided in the Arbitration Agreement, this Agreement is governed by, interpreted, construed, and enforced in accordance with the law of the state where you accepted this Agreement except to the extent inconsistent with or preempted by federal law.
14.2 Entire agreement. Except as otherwise provided in the Arbitration Agreement, this Agreement is the entire and exclusive agreement between the parties with respect to the Products and Services, defined in Section 15 below and it supersedes all previous communications, representations, or agreements, either oral or written, between them. A representation or statement of any kind made by any representative of Smart Financial Tax Services and not included in this Agreement, is not binding on Smart Financial Tax Services .
14.3 Amendments. We have the sole discretion to change the terms of this Agreement or make changes related to any aspect of the Products and Services, except as otherwise provided in this Agreement. If this occurs, we will provide notice to you via any means we consider reasonable including, without limitation, e-mail, posting on our website, or updates to the Products and Services. After we provide notice, continued use of the Products and Services constitutes your acceptance of the changes and the Agreement (as amended).
14.4 Waiver . No waiver of any provision or condition herein is valid unless in writing and signed by you and an authorized representative of us. Our failure to insist on or enforce strict performance of any provision of this Agreement or any right is not to be construed as a waiver of any provision or right.
14.5 Severability. Except as provided in the Arbitration Agreement, any provision of this Agreement determined to be illegal or unenforceable is automatically reformed and construed to be valid, operative, and enforceable to the maximum extent permitted by law or equity while preserving its original intent; the invalidity of any part of this Agreement will not render invalid the remainder of this Agreement.
14.6 Notices. Except as otherwise indicated, any notices under this Agreement to us must be personally delivered or sent by certified or registered mail, return receipt requested, or by U.S. Postal Service express mail, to Smart Financial Tax Services , Attn: Tax Program Notices, One Smart Financial Tax Services Way, Kansas City, Missouri 64105 or to such other address as Smart Financial Tax Services specifies in writing. Notices will be effective upon receipt that may be shown by confirmation of delivery.
14.7 Smart Financial Tax Services and Smart Financial Tax Services Affiliates. All references in this Agreement to Smart Financial Tax Services and Smart Financial Tax Services Affiliates, where the context permits, includes Smart Financial Tax Services 's and Smart Financial Tax Services Affiliates' respective directors, officers, employees, contractors and agents.
14.8 Agreement headings. The headings contained herein are for the convenience of the parties only and are not be used to interpret or construe any of the terms of this Agreement.
14.9 Third Party beneficiaries and assignment. Smart Financial Tax Services 's respective licensors, suppliers, franchisees, and Smart Financial Tax Services Affiliates are considered to be third party beneficiaries of this Agreement solely to the extent necessary for them to enforce any protections afforded them by this Agreement, except as otherwise provided in this Agreement. All rights and benefits of this Agreement from Smart Financial Tax Services are intended solely for the original purchaser of the Products and Services. You must not assign, delegate or otherwise transfer this Agreement or any of your rights under this Agreement. Smart Financial Tax Services may assign this Agreement in its sole discretion and will use reasonable efforts to notify you of an assignment. The remedies and all other rights and benefits provided under this Agreement are personal to the original purchaser of the Products and Services from Smart Financial Tax Services or from its authorized reseller and such rights and benefits must not be assigned or otherwise transferred to any other party. This Agreement inures to the benefit of Smart Financial Tax Services and its respective permitted successors and assigns.
14.10 Taxation. The taxability of the Products and Services will be determined and governed by the purchase agreement or invoice for the specific Products and Services used or paid for.