This Terms of Service Agreement (“Agreement”) constitutes a legal agreement between you (“you” or “user”) and TaxBud, Inc. (“TaxBud”) if your Territory is anywhere within the United States. You must read, agree to, and accept all of the terms and conditions contained in this Agreement in order to use our website located at www.taxbud.com, all affiliated websites, including mobile websites and applications, owned and operated by us, our predecessors or successors in interest, or our Affiliates (collectively, the “Site”).
TaxBud, Inc. (“TaxBud”), provides lead generation to service providers of tax, accounting, or legal services using the TaxBud Services (as defined below). The TaxBud Services enable an authorized provider to seek, receive and fulfill requests for tax, accounting, and legal services from an authorized user of TaxBud’s mobile or web applications. You desire to enter into this Agreement for the purpose of accessing and using TaxBud Services.
You acknowledge and agree that TaxBud (“the Company”) is a technology services provider that does not directly provide tax, accounting, or legal services.
In order to use the TaxBud Services, you must agree to the terms and conditions that are set forth below. Upon your execution (electronic or otherwise) of this Agreement, you and the Company shall be bound by the terms and conditions set forth herein.
IMPORTANT: PLEASE NOTE THAT TO USE THE TAXBUD SERVICES, YOU MUST AGREE TO THE TERMS AND CONDITIONS SET FORTH BELOW. PLEASE REVIEW THE ARBITRATION PROVISION SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH THE COMPANY ON AN INDIVIDUAL BASIS, THROUGH FINAL AND BINDING ARBITRATION UNLESS YOU CHOOSE TO OPT OUT OF THE ARBITRATION PROVISION. BY VIRTUE OF YOUR ELECTRONIC EXECUTION OF THIS AGREEMENT, YOU WILL BE ACKNOWLEDGING THAT YOU HAVE READ AND UNDERSTOOD ALL OF THE TERMS OF THIS AGREEMENT (INCLUDING THE ARBITRATION PROVISION) AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT BUSINESS DECISION. IF YOU DO NOT WISH TO BE SUBJECT TO ARBITRATION, YOU MAY OPT OUT OF THE ARBITRATION PROVISION BY FOLLOWING THE INSTRUCTIONS PROVIDED IN THE ARBITRATION PROVISION BELOW. IF YOU DO NOT ACCEPT THE TERMS OF SERVICE IN ITS ENTIRETY, YOU MUST NOT ACCESS OR USE THE SITE OR THE SITE SERVICES AFTER THE EFFECTIVE DATE. IF YOU AGREE TO THE TERMS OF SERVICE ON BEHALF OF AN ENTITY, OR IN CONNECTION WITH PROVIDING OR RECEIVING SERVICES ON BEHALF OF AN ENTITY OR AGENCY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY OR AGENCY TO THE TERMS OF SERVICE. IN THAT EVENT, “YOU” AND “YOUR” WILL REFER AND APPLY TO THAT ENTITY OR AGENCY.
Subject to the conditions set forth herein, TaxBud may, in its sole discretion, amend this Agreement and the other Terms of Service at any time by posting a revised version on the Site and will provide reasonable advance notice of any amendment that includes a Substantial Change. If the Substantial Change includes an increase to Fees charged by TaxBud, TaxBud will provide at least 30 days’ advance notice of the change, but may not provide any advance notice for changes resulting in a reduction in Fees or any temporary or promotional Fee change. Any revisions to the Terms of Service will take effect on the noted effective date or when posted if there is no noted effective date (each, as applicable, the “Effective Date”).
Your continued use of the Site or the Site Services after the Effective Date of a revised version of this Agreement or of any other Terms of Service constitutes your acceptance of and agreement to be bound by the Terms of Service as revised. In the event of a conflict between this Agreement and the other Terms of Service, this Agreement will control. Capitalized terms are defined throughout this Agreement and in Section 1 (Definitions).
“Affiliate” means any entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with TaxBud.
“Client” means any authorized User utilizing the TaxBud Site to seek and/or obtain Services from another User.
“Client Deliverables” means requests, intellectual property, and any other information or materials that a Service Provider receives from a Client to perform Services.
“Confidential Information” means Client Deliverables, Work Product, and any other information provided to, or created by, a User for a Service Contract or to perform or assist in performing Services, regardless of whether in tangible, electronic, verbal, graphic, visual, or other form. Confidential Information does not include material or information that: (a) is generally known by third parties as a result of no act or omission of Freelancer or Client; (b) subsequent to disclosure hereunder, was lawfully received without restriction on disclosure from a third party having the right to disseminate the information; (c) was already known by User prior to receiving it from the other party and was not received from a third party in breach of that third party’s obligations of confidentiality; or (d) was independently developed by User without use of another person’s Confidential Information.
“Engagement” means an engagement for Services that an Accountant/Attorney provides to a Client under a Service Contract on the Site.
“Fixed-Price Contract” means a Service Contract for which Client is charged a fixed fee agreed between a Client and a Service Provider, prior to the commencement of a Service Contract, for the completion of all TaxBud Services contracted by Client for such Service Contract.
“Service Provider” means any authorized User utilizing the Site to advertise and provide Services to Clients.
“Service Provider Fees” means: (a) for an Hourly Contract, an amount equal to the number of hours recorded by Service Provider in the Time Logs, multiplied by the hourly rate set by the Freelancer; (b) for a Fixed-Price Contract, the fixed fee agreed between a Client and a Service Provider.
“Services” means all services performed for or delivered to Clients by Service Provider.
“Hourly Contract” means a Service Contract for which Client is charged based on the hourly rate set by the Service Provider.
“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.
“Payment Method” means a valid credit card issued by a bank acceptable to TaxBud, a bank account linked to your Account, a PayPal account, a debit card, or such other method of payment as TaxBud may accept from time to time in our sole discretion.
“Service Contract” means, as applicable, the contractual provisions between a Client and a Service Provider governing the Services to be performed by a Service Provider for Client for an Engagement; and, in each case, the additional agreements referenced in Section 5.1 (Service Contracts).
“Substantial Change” means a change to the terms of the Terms of Service that reduces your rights or increases your responsibilities.
“Time Logs” means the report of hours recorded for a stated period by a Service Provider for the Services performed for a Client.
“User Content” means any data, feedback, content, text, photographs, images, video, music, or other information that you post to any part of the Site or provide to TaxBud.
“Work Product” means any tangible or intangible results, products, or, services that Service Provider agrees to create for, or actually delivers to, Client as a result of performing the Service Provider Services.
2. CONSENT TO USE ELECTRONIC RECORDS
In connection with the Terms of Service, you may be entitled to receive certain records from TaxBud or our Affiliates, such as contracts, notices, and communications, in writing. To facilitate your use of the Site and the Site Services, you give us permission to provide these records to you electronically instead of in paper form.
2.1 YOUR CONSENT AND YOUR RIGHT TO WITHDRAW CONSENT
By registering for an Account and/or agreeing to the terms of this agreement, you consent to electronically receive and access, via email or the Site, all records and notices for the services provided to you under the Terms of Service that we or our Affiliates would otherwise be required to provide to you in paper form. However, we reserve the right, in our sole discretion, to communicate with you via the U.S. Postal Service and other third-party mail services using the address under which your account is registered. Your consent to receive records and notices electronically will remain in effect until you withdraw it. You may withdraw your consent to receive further records and notices at any time by contacting Customer Support. If you withdraw your consent to receive such records and notices electronically, we will revoke your access to the Site and the Site Services, and you will no longer be permitted to use the Site or the Site Services. Any withdrawal of your consent to receive records and notices electronically will be effective only after we have a reasonable period of time to process your request for withdrawal. Please note that your withdrawal of consent to receive records and notices electronically will not apply to records and notices electronically provided by us to you before the withdrawal of your consent becomes effective.
2.2 KEEPING YOUR PHONE NUMBER, ADDRESS, AND EMAIL ADDRESS CURRENT WITH US
In order to ensure that we are able to provide records and notices to you electronically, you agree to notify us immediately of any change in your phone number or email address by updating your Account information on the Site or by contacting Customer Support. In addition, so that we may communicate with you via the U.S. Postal Service and other third-party mail services, you agree to notify us immediately of any change in your address.
2.3 HARDWARE AND SOFTWARE YOU WILL NEED TO USE THE SITE SERVICES FOR YOUR BUSINESS
To access and retain the records and notices we provide to you electronically, you will need: (a) a valid email address; (b) a computer system that operates on a platform like Windows or Mac; (c) a connection to the Internet; (d) Current Versions of the software, browsers, plug-ins, or other computer applications and programs identified on the Site (Users utilizing other browsers may experience compatibility difficulties); (e) a Current Version of a program that accurately reads and displays PDF files, such as the Current Version of Adobe Acrobat Reader; (f) a computer or device and an operating system capable of supporting all of the above; and (g) a printer to print out and retain records and notices in paper form or electronic storage to retain records and notices in an electronic form. By “Current Version”, we mean a version of the software that is currently being supported by its publisher. We may change these requirements from time to time and will update this Agreement accordingly. You should retain a copy of all of the records and notices we send to you electronically.
By accepting and agreeing to this Agreement and the other Terms of Service electronically, you represent that (x) you have read and understand the above consent to receive records and notices electronically; (y) you satisfy the minimum hardware and software requirements specified above; and (z) your consent will remain in effect until you withdraw your consent as specified above.
3. TAXBUD ACCOUNTS
3.1 ACCOUNT ELIGIBILITY
To use the Site and certain Site Services, you must register for an Account. TaxBud offers the Site and Site Services for your business purposes only, and not for personal, household, or consumer use. To use the Site and Site Services, you must have, and hereby represent that you have, an independent business (whether it be as a self-employed individual/sole proprietor or as a corporation or other entity) and further represent that you intend to use the Site and Site Services for your business purposes only. You understand that you must comply with any licensing or registration requirements with respect to your business, and you represent that you comply with all such requirements. To register for an Account, you must be, and hereby represent that you are, a legal entity, and an individual 18 years or older who can form legally binding contracts. By using the Site or Site Services, you agree to: (a) abide by this Agreement and the other Terms of Service; (b) be financially responsible for your use of the Site and the purchase or delivery of tax, accounting, or legal Services; and (c) perform your obligations as specified by any Service Contract that you enter into, unless such obligations are prohibited by applicable law or the Terms of Service. TaxBud reserves the right, in our sole discretion, to refuse, suspend, or revoke your access to the Site and Site Services upon discovery that any information you provided on any form or posted on the Site is not true, accurate, or complete, or such information or other conduct otherwise violates the Terms of Service, or for any other reason or no reason in TaxBud’s sole discretion.
You represent that you are not: (x) a citizen or resident of a geographic area in which access to or use of the Site or Site Services is prohibited by applicable law, decree, regulation, treaty, or administrative act; (y) a citizen or resident of, or located in, a geographic area that is subject to U.S. or other sovereign country sanctions or embargoes; or (z) an individual, or an individual employed by or associated with an entity, identified on the U.S. Department of Commerce’s Denied Persons or Entity List, the U.S. Department of Treasury’s Specially Designated Nationals or Blocked Persons Lists, or the U.S. Department of State’s Debarred Parties List or otherwise ineligible to receive items subject to U.S. export control laws and regulations or other economic sanction rules of any sovereign nation. You agree that if your country of residence or other circumstances change such that the above representations are no longer accurate, that you will immediately cease using the Site and Site Services.
3.2 ACCOUNT REGISTRATION; PROFILE
By registering for a service provider account, you must complete a User profile (“Profile”), which you consent to be shown to other Users and the public. If you are an accountant or attorney, you represent and warrant that you use your Profile to market your business to others for the purpose of entering into commercial relationships with other Users. You agree to provide true, accurate, and complete information on your Profile and all registration and other forms you access on the Site or provide to us and to update your information to maintain its truthfulness, accuracy, and completeness. You agree not to provide and to correct any information about your location, your business, your skills, or the services your business provides that is or becomes false or misleading. You agree not to register for more than one Client Account and one Accountant or Attorney Account without express written permission from us. You agree not to ask or allow another person to use your Account on your behalf, or on behalf of another, for your use, or for your benefit.
3.3 IDENTITY VERIFICATION
When you register for an Account and from time to time thereafter, your Account will be subject to verification, including, but not limited to, validation against third-party databases or the verification of one or more official government or legal documents that confirm your identity and your ability to represent your business on TaxBud, if it is a separate legal entity. You authorize TaxBud, directly or through third parties, to make any inquiries necessary to validate your identity and confirm your ownership of your phone number, email address, or financial accounts, subject to applicable law. When requested, you must provide us with information about you and your business.
3.4 USERNAMES AND PASSWORDS
When you register for an Account, you will be asked to choose a username and password for the Account.
You are entirely responsible for safeguarding and maintaining the confidentiality of your Account username and password. You authorize TaxBud to assume that any person using the Site with your username and password, either is you or is authorized to act for you. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Account or any unauthorized access to your password of your Account. You further agree not to use any username, or password of another User of the Site that you are not authorized to use, and not to allow others who are not authorized to do so to use your Account at any time.
3.5 MARKETPLACE FEEDBACK
You acknowledge and agree that feedback benefits the marketplace, all Users, and the efficiency of the Site and you specifically request that TaxBud post composite or compiled feedback about Users, including yourself, on User Profiles and elsewhere on the Site. You acknowledge and agree that feedback results for you, including your Job Success Score (“JSS”), if any, will consist of comments, ratings, indicators of User satisfaction, and other feedback left by other Users. You further acknowledge and agree that TaxBud will make feedback results available to other marketplace Users, including composite or compiled feedback. TaxBud provides this feedback system as a means through which Users can share their opinions publicly and TaxBud does not monitor or censor these opinions. You acknowledge and agree that posted composite or compiled feedback and any JSS relate only to the business advertised in the Freelancer Profile and not to any individual person. You agree not to use the JSS to make any employment, credit, credit valuation, underwriting, or other similar decision about any other User.
TaxBud does not investigate any remarks posted by Users for accuracy or reliability but may do so if a User or TaxBud itself requests that TaxBud do so. You may be held legally responsible for damages suffered by other Users or third parties as a result of your remarks if such remarks are legally actionable or defamatory. TaxBud is not legally responsible for any feedback or comments posted or made available on the Site by any Users or third parties, even if that information is defamatory or otherwise legally actionable. In order to protect the integrity of the feedback system and protect Users from abuse, TaxBud reserves the right (but is under no obligation) to remove posted feedback or information that, in TaxBud’s sole judgment, violates the Terms of Service or negatively affects our marketplace. You acknowledge and agree that you will notify TaxBud of any error or inaccurate statement in your feedback results, including the JSS, and that if you do not do so, TaxBud may rely on the accuracy of such information.
4. PURPOSE OF THE SITE AND SITE SERVICES
The Site is a marketplace where Clients and Accountants/Attorneys can identify each other and advertise, buy, and sell Tax, Accounting, and Legal Services online. Subject to the Terms of Service, TaxBud provides the Site Services to Users, including hosting and maintaining the Site, enabling the formation of Service Contracts, and coordinating disputes related to those Service Contracts. If Users agree on terms for Accountant or Attorney Services, a Service Contract is formed directly between such Users, subject to the provisions set forth in Section 5 (Contractual Relationship Between Client and Service Providers). When a User enters a Service Contract, the User uses the Site to engage, communicate, invoice and pay online.
5. CONTRACTUAL RELATIONSHIP BETWEEN CLIENT AND SERVICE PROVIDER
5.1 SERVICE CONTRACTS
The Service Contract means, as applicable, the contractual provisions between a Client and a Service Provider governing the Services to be performed by a Service Provider for Client for an Engagement including services, price, timeline, and, in each case, the additional agreements.
You acknowledge and agree that a Service Contract is comprised of the following agreements (as applicable): (a) The Engagement terms awarded and accepted on the Site to the extent that the terms do not, and do not purport to, expand TaxBud’s obligations or restrict TaxBud’s rights under the Terms of Service; (b) the terms in Section 8 (Service Contract Terms), unless other terms are agreed to by the parties, to the extent that the provisions do not, and do not purport to, expand TaxBud’s obligations or restrict TaxBud’s rights under the Terms of Service; and (c) any other contractual provisions accepted by both the Client and the Service Provider, to the extent that the provisions do not, and do not purport to, expand TaxBud’s obligations or restrict TaxBud’s rights under the Terms of Service.
You acknowledge and agree that TaxBud is not a party of Service Contracts made directly between a client and service provider, and that the formation of a Service Contract between Users will not, under any circumstance, create an employment or other service relationship between TaxBud and any Accountant or Attorney.
6. PAYMENT TERMS
6.1 SERVICE FEE
The fees to use the Site and Site Services are paid solely by the Service Provider. When a Client pays a Service Provider, or when funds related to an Engagement are otherwise released to a Service Provider as required by the applicable Escrow Instructions, TaxBud will credit the Service Provider for the full amount paid or released after subtracting and disbursing to TaxBud a service fee in the amount specified in the TaxBud Fee and ACH Authorization Agreement (the “Service Fee”). The Service Provider agrees to pay TaxBud the Service Fee for using the Site’s communication, invoicing, dispute resolution and payment services, including Payment Protection.
6.2 NO FEE FOR INTRODUCING OR FOR FINDING ENGAGEMENTS
TaxBud does introduces Clients to Service Providers and helps Service Providers secure Engagements. TaxBud does not charge a fee when a Service Provider finds a suitable Client or finds an Engagement. However, a Client and a Service Provider are obligated to use the Site to pay and receive payment for their work together if they identified each other through the Site, as detailed in Section 7 (Non-Circumvention), below. In addition, TaxBud does not charge any fee or dues for posting public feedback and composite or compiled feedback, including JSS.
6.3 DISBURSEMENTS TO FREELANCERS
Under the relevant Escrow Instructions, TaxBud disburses funds that are payable to a Service Provider for the Engagement (less any applicable TaxBud fees) to Service Providers within 30 days after the Freelancer Fees are due and payable from Client. Service Provider agrees that it will not receive interest or other earnings on the funds held by TaxBud prior to disbursement to Service Provider.
Notwithstanding any other provision of the Terms of Service or the Escrow Instructions, and except as prohibited by applicable law, if we determine in our sole discretion that you have violated the conditions and restrictions of the Site or the Terms of Service, TaxBud may hold the disbursement of the Service Provider Fees. Additionally, TaxBud may also hold the disbursement of the Service Provider Fees if: (a) we require additional information, such as Service Provider’s tax information, government-issued identification, address, or date of birth; (b) we have reason to believe the Service Provider Fees may be subject to dispute or chargeback; (c) we suspect fraud; (d) we believe there are reasonable grounds for insecurity with respect to the performance of obligations under a Service Contract, this Agreement, or other Terms of Service; (e) we deem it necessary in connection with any investigation; or (f) required by applicable law.
In cases of fraud, abuse, or violation of the Terms of Service, TaxBud reserves the right to revoke any payments and instruct TaxBud the right to hold and reclaim all Service Provider Fees due to the Service Provider (not just the Service Provider Fees from the Service Contract(s) under investigation) unless prohibited by applicable law. In addition, we reserve the right to seek reimbursement from you, and you will reimburse us, if we suspect fraud or criminal activity associated with your payment, withdrawal, or Engagement; if we discover erroneous or duplicate transactions; or if we have supplied our services in accordance with this Agreement yet we receive any chargeback from the Payment Method used by you, or used by your Client if you are a Service Provider. You agree that we have the right to obtain such reimbursement by instructing TaxBud to charge an applicable Escrow Account, and any other accounts you hold with us, offsetting any amounts determined to be owing, deducting amounts from future payments or withdrawals, charging your Payment Method, or obtaining reimbursement from you by any other lawful means. Failure to pay for reimbursements of chargebacks is cause for termination of the applicable Escrow Account and revocation of your access to the Site.
If Client fails to pay the Service Provider Fees or any other amounts due under the Terms of Service, whether by canceling Client’s credit or debit card, initiating an improper chargeback, or any other means, TaxBud may suspend or close Client’s Account and revoke Client’s access to the Site, including Client’s authority to use the Site to process any additional payments, enter into Service Contracts, or obtain any additional TaxBud Services. Without limiting other available remedies, Client must pay TaxBud upon demand for amounts owed under the Terms of Service, plus interest on the outstanding amount at the lesser of one and one-half percent (1.5%) per month or the maximum interest allowed by applicable law, plus attorneys’ fees and other costs of collection to the extent permitted by applicable law. To the extent permitted by applicable law, TaxBud, at our discretion, may set off amounts due against other amounts received from or held by TaxBud for Client, make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with credit reporting agencies and law enforcement authorities in any resulting investigation or prosecution.
6.5 NO RETURN OF FUNDS
Client acknowledges and agrees that TaxBud will charge the Client’s designated Payment Method for Service Provider Fees that are due upfront, if applicable, during the time at which the Client accepts and approves the terms set forth for a particular project by authorizing the ”Start Project” action on the projects proposal. The remainder Service Provider fees which are due on completion will charge Client’s designated Payment Method after Client accepts and approves work submitted by Service Provider. The Client acknowledges and agrees that after Client accepts and approves work submitted by Service Provider the payment for the project is non-refundable, except as otherwise required by applicable law. Client and Service Provider also acknowledges and agrees that the Terms of Service provide a dispute resolution process as a way for the Client to resolve disputes. To the extent permitted by applicable law, Client therefore agrees not to ask its credit card company, bank, or other Payment Method provider to charge back any Service Provider Fees or other Fees charged pursuant to the Terms of Service for any reason. A chargeback in breach of the foregoing obligation is a material breach of the Terms of Service. If Client initiates a chargeback in violation of this Agreement, Client agrees that TaxBud may dispute or appeal the chargeback and institute collection action against Client.
6.6 PAYMENT METHODS
Clients are charged a fee for payment processing and administration as described in the TaxBud Fee and ACH Authorization Agreement.
Client hereby authorizes TaxBud to run credit card authorizations on all credit cards provided by Client, to store credit card and banking or other financial details as Client’s method of payment for Services, and to charge Client’s credit card (or any other Payment Method). Credit cards and PayPal accounts and, if applicable, bank accounts in most countries will be charged by Braintree.
When Client authorizes the payment of the Service Provider Fees for a Fixed-Price Contract on the Site, Client automatically and irrevocably authorizes and instructs TaxBud to charge Client’s Payment Method for the Service Provider Fees.
By providing Payment Method information through the Site, Client represents, warrants, and covenants that: (a) Client is legally authorized to provide such information; (b) Client is legally authorized to perform payments using the Payment Method(s); and (c) such action does not violate the terms and conditions applicable to Client’s use of such Payment Method(s) or applicable law. When Client authorizes a payment using a Payment Method via the Site, Client represents, warrants, and covenants that there are sufficient funds or credit available to complete the payment using the designated Payment Method. To the extent that any amounts owed under this Agreement or the other Terms of Service cannot be collected from Client’s Payment Method(s), Client is solely responsible for paying such amounts by other means.
You acknowledge and agree that a substantial portion of the compensation TaxBud receives for making the Site available to you is collected through the Service Fee described in Section 6.1 (“Service Fee”). TaxBud only receives this Service Fee when a Client and a Service Provider pay and receive payment through the Site. Therefore, for 24 months from the time you identify or are identified by any party through the Site (the “Non-Circumvention Period”), you must use the Site as your exclusive method to request, make, and receive all payments for work directly or indirectly with that party or arising out of your relationship with that party (the “TaxBud Relationship”). You may opt-out of this obligation with respect to each Client- Service Provider relationship only if Client or prospective Client or Service Provider pays TaxBud for each such relationship:
(a) an “Opt-Out Fee” computed to be the greater of the following amounts:
(i) $2,500; or
(ii) 15% of the cost to the Client of the services to be performed in the TaxBud Relationship during the Non-Circumvention Period, as estimated in good faith by the prospective Client; or
(b) interest at the rate of 18% per annum or the maximum rate permitted by applicable law, whichever is less, calculated from the date Client first makes payment to the subject Freelancer until the date the Opt-Out Fee is paid.
To pay the Opt-Out Fee, you must request instructions by sending an email message to email@example.com.
Except if you pay the Opt-Out Fee, you agree not to circumvent the Payment Methods offered by the Site. By way of illustration and not in limitation of the foregoing, you must not:
- Submit proposals or solicit parties identified through the Site to contact, hire, work with, or pay outside the Site.
- Accept proposals or solicit parties identified through the Site to contact, deliver services, invoice, or receive payment outside the Site.
- Invoice or report on the Site or in an Opt-Out Fee request an invoice or payment amount lower than that actually agreed between Users.
You agree to notify TaxBud immediately if another person improperly contacts you or suggests making or receiving payments outside of the Site. If you are aware of a breach or potential breach of this non-circumvention agreement, please submit a confidential report to TaxBud by sending an email message to: firstname.lastname@example.org.
If you refuse to accept any new version of the Terms of Service or elect not to comply with certain conditions of using the Site, such as minimum rates supported on the Site, and therefore choose to cease using the Site, you may pay the Opt-Out Fee for each other User you wish to continue working with on whatever terms you agree after you cease using the Site.
8. SERVICE CONTRACT TERMS
Unless otherwise expressly agreed to in writing by both Users, the default terms and conditions of the Service Contract that a Service Provider enters directly with a Client when the Service Provider agrees to provide Services to the Client are as set forth in this Section 8. Users may agree between them on any additional or different terms for their Service Contract as long as such terms do not purport to affect the rights or responsibilities of TaxBud or violate the Terms of Service. TaxBud is not a party to any Service Contract by or between Users.
Users agree that the terms concerning the Service Contract described on the Site, including Service Provider Fees, rates, hours, and milestones, form part of the Service Contract. Users agree to obtain the consent of the other before making changes to the Service Contract by adding additional or different milestones or making other changes to the Service Contract on the Site. If consent of the other party is not first obtained, the other party may reject such changes by terminating the Service Contract (see Section 8.5) or accept such changes by continuing to work on the Service Contract.
Service Provider will perform the Services in a professional and workmanlike manner and will timely deliver any agreed upon Work Product. The manner and means of performing the Services will be determined and controlled by and between Service Provider and client.
8.2 CLIENT PAYMENTS AND BILLING
For Fixed-Price Contracts, Client becomes obligated for Service Provider Fees immediately after Client accepts and approves payment details specified for a particular project in the projects proposal upon sending a Fixed-Price Contract offer or upon activating any additional milestone.
8.3 DISPUTE RESOLUTION
Client and Service Provider are e
ncouraged to come to a mutual agreement if there is a particular dispute regarding a project, or if refunds or cancellations are necessary. If a mutual agreement cannot be met, and, Client demands a refund after having been charged upfront costs, during which the Client has not yet accepted and approved final work submitted by Service Provider, Client must email email@example.com notifying TaxBud of the nature of the dispute. TaxBud Dispute resolution is available within 15 days of the date of the last release of funds from Client for the particular charge in question. The TaxBud Disputes team will notify Client and Service Provider via ticket by providing a notice of dispute along with a request for information and supporting documentation (if any). If TaxBud determines a refund is necessary, and the dispute is in compliance with the terms of service, TaxBud will require funds released be refunded to the client at the Service Provider’s expense.
8.4 TERMINATION OF A SERVICE CONTRACT
Under Fixed-Price Contracts, once a Client’s Payment Method has been charged to fund the escrow account for the Engagement, absent a full refund to Client by Service Provider, the Service Contract does not terminate until the Service Provider Services are completed. However, either Client or Service Provider has the right to terminate a Fixed-Price Contract at any time with the consent of the other party or in the event of a material breach. If a Fixed-Price Contract is terminated, Client does not have the right to recover any payments already released to Service Provider from the escrow account for the Engagement.
8.5 INTELLECTUAL PROPERTY RIGHTS
CERTAIN DEFINED TERMS
The following capitalized terms have the following meanings:
“Client Materials” means requests, intellectual property, and any other information or materials that Client provides to Freelancer for Freelancer to perform Freelancer Services.
Client grants Service Provider a limited, non-exclusive, revocable (at any time, at Client’s sole discretion) right to use the Client Materials as necessary solely for the performance of the Services under the applicable Service Contract. Client reserves all other rights and interest, including, without limitation, all Intellectual Property Rights, in and to the Client Materials. Upon completion or termination of the Service Contract, or upon Client’s written request, Service Provider will immediately return all Client Materials to Client and further agrees to destroy all copies of Client Materials and Deliverables (except for Background Technology as permitted by the Service Contract) contained in or on Service Provider’s premises, systems, or any other equipment or location otherwise under Service Provider’s control. Within ten days of such request from Client, Service Provider agrees to provide written certification to Client that Service Provider has returned or destroyed all Client Materials and Work Product as provided in this subsection.
OWNERSHIP OF WORK PRODUCT AND INTELLECTUAL PROPERTY
Upon Service Provider’s receipt of full payment from Client, the Work Product, including without limitation all Intellectual Property Rights in the Work Product, will be the sole and exclusive property of Client, and Client will be deemed to be the author thereof. If Service Provider has any Intellectual Property Rights to the Work Product that are not owned by Client upon Service Provider’s receipt of payment from Client, Service Provider hereby automatically irrevocably assigns to Client all right, title and interest worldwide in and to such Intellectual Property Rights. Except as set forth above, Service Provider retains no rights to use, and will not challenge the validity of Client’s ownership in, such Intellectual Property Rights. Service Provider hereby waives any moral rights, rights of paternity, integrity, disclosure and withdrawal or inalienable rights under applicable law in and to the Work Product. If payment is made only for partial delivery of Work Product, the assignment described herein applies only to the portion of Work Product delivered.
A disclosure of information will be immune from prosecution or civil action under the Defend Trade Secrets Act, 18 U.S.C. section 1832, if it: (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
8.6 WORKER CLASSIFICATION
The Terms of Service do not create a partnership or agency relationship between Users. Service Provider does not have authority to enter into written or oral (whether implied or express) contracts on behalf of TaxBud. For Service Contracts classified as independent contractor relationships, Client may not require an exclusive relationship.
9. RELATIONSHIP WITH TAXBUD
TaxBud is not a party to the dealings between Client and Service Provider, including performance of Service Provider. TaxBud does not, in any way, supervise, direct, or control Service Provider or Service Provider’s work. TaxBud does not set Service Provider’s work hours, work schedules, or location of work. TaxBud will not provide Service Provider with training or any equipment, labor, or materials needed for a particular Service Contract. TaxBud does not provide the premises at which the Service Provider will perform the work. TaxBud makes no representations about, and does not guarantee the quality, safety, or legality of, the Services; the truth or accuracy of Service Provider’s listings on the Site; the qualifications, background, or identities of Users; the ability of Service Providers to deliver the Services; the ability of Clients to pay for the Services; or that a Client or Service Provider can or will actually complete a transaction.
TaxBud does not deduct any amount for withholding, unemployment, Social Security, or other taxes for Client or Service Provider, each of which is solely responsible for all tax returns and payments required to be filed with or made to any federal, state, or local tax authority in any nation with respect to Service Provider’s performance, and Client’s acceptance, of Services.
TaxBud is not required to and may not verify any feedback or information given to us by Service Providers or Clients, nor is TaxBud required to perform background checks on Service Providers or Clients.
You hereby acknowledge and agree that TaxBud may provide information on the Site about a Service Provider or Client, such as feedback, composite feedback, including a strength or risk score, geographical location, or verification of identity or credentials. However, such information is based solely on data that Service Providers or Clients voluntarily submit to TaxBud and does not constitute and will not be construed as an introduction, endorsement, or recommendation by TaxBud; TaxBud provides such information solely for the convenience of Users.
10. THIRD-PARTY BENEFICIARY
Users appoint TaxBud as a third-party beneficiary of their Service Contracts for purposes of enforcing any obligations owed to, and any benefits conferred on, TaxBud hereunder. For example, Section 5.1 of this Agreement prohibit certain terms in any Service Contract and TaxBud is hereby made a third-party beneficiary for purposes of enforcing such prohibitions. Users further agree that TaxBud has the right to take such actions with respect to their Accounts, including, without limitation, suspension, termination, or legal actions, as we, in our sole discretion, deem necessary to enforce our rights as a third-party beneficiary under the Service Contracts.
The Terms of Service and any Account registration will not be construed as creating or implying any relationship of agency, franchise, partnership, or joint venture between Users and TaxBud, except and solely to the extent expressly stated in this Agreement.
11. COMMUNICATIONS FROM YOU TO TAXBUD
All notices to TaxBud or our Affiliates intended to have a legal effect must be in writing via email to firstname.lastname@example.org. All such notices are deemed effective upon receipt by TaxBud. TaxBud does not accept service of any legal process by email or mail; all such service should occur by hand delivery on TaxBud or its registered agent for service of process.
12. TAXBUD’S ROLE
12.1 SERVICE CONTRACTS
You expressly acknowledge, agree, and understand that: (a) the Site is merely a venue where Users may act as Clients and/or Service Providers; (b) TaxBud is not a party to any Service Contracts between Clients and Service Providers; (c) you are not an employee of TaxBud, and TaxBud does not, in any way, supervise, direct, or control the Service Provider or its Services; (d) TaxBud will not have any liability or obligations under or related to Service Contracts for any acts or omissions by you or other Users; (e) TaxBud has no control over Service providers or the Service Provider’s Services offered or rendered by Service Providers; and (f) TaxBud makes no representations as to the reliability, capability, or qualifications of any Service Provider or the quality, security, or legality of any Service Provider Services, and TaxBud disclaims any and all liability relating thereto.
13. LICENSES AND THIRD-PARTY CONTENT
13.1 SITE LICENSE AND INTELLECTUAL PROPERTY RIGHTS
Subject to and conditioned on compliance with the Terms of Service, TaxBud grants you a limited license to access and, if you have created an Account, to use the Site for the purpose of using the Site Services. You must not access (or attempt to access) the Site or Site Services by any means other than the interface provided, and you will not use information from the Site or Site Services for any purposes other than the purposes for which it was made available. You agree not to use the Site or Site Services for offering any goods or services other than Services as permitted by this Agreement. You must not sell, reproduce, distribute, modify, display, publicly perform, prepare derivative works based on, repost, or otherwise use any content of the Site or Site Services in any way for any public or commercial purpose without TaxBud’s prior written consent. You must not use any content of the Site or Site Services on any other website or in a networked computer environment for any purpose except your own viewing without TaxBud’s prior written consent. You must not frame or link to the Site or Site Services except as permitted in writing by TaxBud. You must not attempt to reverse engineer, modify, adapt, translate, prepare derivative works from, decompile, attempt to interfere with the operation of, or otherwise attempt to derive source code from any part of the Site or Site Services unless expressly permitted by applicable law. You will not access Site Services in order to build a similar service or application, or publish any performance, or any benchmark test or analysis relating to the Site Services. TaxBud and our licensors retain all right, title, and interest in and to all Intellectual Property Rights related in and to the Site and the Site Services. The TaxBud logos and names are trademarks of TaxBud and may be registered in certain jurisdictions. All other product names, company names, marks, logos, and symbols on the Site or Site Services may be the trademarks of their respective owners. Except as expressly stated in this Agreement, nothing in the Terms of Service confers any license under any of TaxBud’s or any third party’s Intellectual Property Rights, whether by estoppel, implication, or otherwise.
13.2 USER CONTENT LICENSE
When you post User Content on the Site or through the Site Services or provide TaxBud with User Content, you represent and warrant that you have the right, power, and authority to post that User Content and grant the licenses specified below. You further represent and warrant that by posting or providing such User Content you will not violate third-party rights of any kind, including, without limitation, any Intellectual Property Rights, rights of publicity, and privacy rights. To the extent your User Content may be copyrightable, you represent, warrant, and covenant that you are the owner of all the copyright rights to such User Content and that TaxBud may exercise the rights to your User Content granted under the Terms of Service without any liability or obligation for any payment.
The licenses to User Content granted by you in this Agreement will terminate within a commercially reasonable time after you remove or delete your User Content from the Site, except that you grant TaxBud and our successors and Affiliates the irrevocable and perpetual license to retain and use, but not publicly display or distribute, server or archival copies of all User Content that you have removed or deleted to the extent permitted by applicable law.
You may submit comments or ideas about the Site and Site Services, including without limitation about how to improve the Site or Site Services (collectively, “Ideas”). By submitting any Ideas, you agree that: (a) your disclosure is voluntary, gratuitous, unsolicited, and without restriction and will not place TaxBud under any fiduciary or other obligation, (b) your Ideas do not contain the confidential or proprietary information of third parties, and (c) we are free to use the Ideas without any additional compensation to you and to disclose the Ideas on a non-confidential basis or otherwise to anyone. You further acknowledge and agree that, by acceptance of your submission, TaxBud does not waive any rights to use similar or related ideas known or developed by TaxBud or obtained from sources other than you.
13.3 UNAUTHORIZED ACCESS AND USE; SITE INTERFERENCE; MALICIOUS SOFTWARE
You agree that you will not: (a) take any action that imposes or we believe may impose (in our sole discretion) an unreasonable or disproportionately large load on the Site’s infrastructure; (b) copy, reproduce, modify, create derivative works from, distribute, or publicly display any content (other than content you have submitted to the Site) from the Site, any software code that is part of the Site, or any services that are offered on the Site without the prior written permission of TaxBud and the appropriate third party, as applicable; (c) interfere or attempt to interfere with the proper operation of the Site or any activities conducted on the Site; (d) bypass any measures we may use to prevent or restrict access to the Site or any subparts of the Site, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Site or the content therein; (e) transmit spam, chain letters, or other unsolicited communications; (f) attempt to interfere with or compromise the system integrity or security or decipher any transmissions to or from the servers running the Site; (g) collect or harvest any personally identifiable information, including Account names, from the Site; (h) access any content on the Site through any technology or means other than those provided or authorized by the Site; or (i) directly or indirectly, advertise or promote another website, product, or service or solicit other Users for other websites, products, or services.
Additionally, you agree that you will not post or introduce any invalid data, virus, worm, or other harmful or malicious software code, agent, hidden procedure, routine, or mechanism through or to the Site or the Site software that is designed to cause to cease functioning, disrupt, disable, harm, or otherwise impair in any manner, including aesthetic disruptions or distortions, the operation of (or to allow you or any other person to access or damage or corrupt data, storage media, programs, equipment, or communications or otherwise interfere with operations of or on) the Site or any other software, firmware, hardware, computer system, or network of TaxBud or any third party.
13.4 THIRD-PARTY VERIFICATION/
The Site makes available various services provided by third parties to verify a User’s credentials and provide other information. Any information or content expressed or made available by these third parties or any other Users is that of the respective author(s) or distributor(s) and not of TaxBud. TaxBud neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, information, or statement made on the Site by anyone other than TaxBud’s authorized employees acting in their official capacities.
13.5 LINKS AND APPLICATIONS
The Site may contain links to third-party websites. The Site may also contain applications that allow you to access third-party websites via the Site. Such third-party websites are owned and operated by the third parties and/or their licensors. Your access and use of third-party websites, including online communication services, such as chat, email, and calls will be governed by the terms and policies of the applicable third-party websites. You acknowledge and agree that TaxBud is not responsible or liable for: (a) the availability or accuracy of third-party websites; or (b) the content, advertising, or products on or available from third-party websites. You are responsible for deciding if you want to access third-party websites by clicking on a link or installing an application. The inclusion of any link or application on the Site does not imply that we endorse the linked site or application. You use the links and third-party websites at your own risk and agree that your use of an application or third-party website via the Site is on an “as is” and “as available” basis without any warranty for any purpose.
13.6 MOBILE AND OTHER DEVICES
When using our mobile applications, please be aware that your carrier’s normal rates and fees, such as text messaging and data charges, will still apply. Our mobile applications may not contain the same functionality available on the Site.
13.7 SITE UPDATES
We may from time to time in our sole discretion develop and provide Site Service updates, which may include upgrades, bug fixes, patches, and other error corrections and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that we do not have any obligation to provide any Updates or to continue to provide or enable any particular features or functionality. You will promptly download and install all Updates and acknowledge and agree that Site Services or portions thereof may not work properly should you fail to do so. You further agree that all Updates will be subject to the terms of the Terms of Service, unless otherwise provided in terms associated with such Update. TaxBud reserves the right, at any time, to modify, suspend, or discontinue Site Services or any part thereof without notice. You agree TaxBud will not be liable to you or any third party for any modification, suspension, or discontinuance of Site Services or any part thereof.
14. CONFIDENTIAL INFORMATION
To the extent a Client or Service Provider provides Confidential Information to the other, the recipient will protect the secrecy of the discloser’s Confidential Information with the same degree of care as it uses to protect its own Confidential Information, but in no event with less than due care, and will: (a) not disclose or permit others to disclose another’s Confidential Information to anyone without first obtaining the written consent of the owner of the Confidential Information; (b) not use or permit the use of another’s Confidential Information, except as necessary for the performance of tax, accounting, or legal services (including, without limitation, the storage or transmission of Confidential Information on or through the Site for use by Service Provider); and (c) limit access to another’s Confidential Information to its personnel who need to know such information for the performance of Services. A disclosure of information will be immune from prosecution or civil action under the Defend Trade Secrets Act, 18 U.S.C. section 1832, if it: (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
If and when Confidential Information is no longer needed for the performance of the Services for a Services Contract or at Client’s or Service Provider’s written request (which may be made at any time at Client’s or Service Provider’s sole discretion), the party that received Confidential Information, will, at its expense, promptly destroy or return the disclosing party’s Confidential Information and any copies thereof contained in or on its premises, systems, or any other equipment otherwise under its control. The party that received Confidential Information agrees to provide written certification to the party disclosing the Confidential Information of compliance with this subsection within ten days after the receipt of disclosing party’s written request for such certification.
Without limiting Section 14.1 (Confidentiality), Client, Service Provider, and TaxBud will not publish, or cause to be published, any other party’s Confidential Information or Work Product, except as may be necessary for performance of Services for a Services Contract.
15. WARRANTY DISCLAIMER
YOU AGREE NOT TO RELY ON THE SITE, THE SITE SERVICES, ANY INFORMATION ON THE SITE OR THE CONTINUATION OF THE SITE. THE SITE AND THE SITE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. TAXBUD MAKES NO EXPRESS REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SITE, THE SITE SERVICES, WORK PRODUCT, OR ANY ACTIVITIES OR ITEMS RELATED TO THIS AGREEMENT OR THE OTHE TERMS OF SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TAXBUD DISCLAIMS ALL EXPRESS AND IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. SOME JURISDICTIONS MAY NOT ALLOW FOR ALL OF THE FOREGOING LIMITATIONS ON WARRANTIES, SO TO THAT EXTENT, SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. SECTION 20 (TERM AND TERMINATION) STATES USER’S SOLE AND EXCLUSIVE REMEDY AGAINST TAXBUD WITH RESPECT TO ANY DEFECTS, NON-CONFORMANCES, OR DISSATISFACTION.
16. LIMITATION OF LIABILITY
TaxBud is not liable, and you agree not to hold us responsible, for any damages or losses arising out of or in connection with the Terms of Service, including, but not limited to:
- your use of or your inability to use our Site or Site Services;
- delays or disruptions in our Site or Site Services;
- viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
- glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
- damage to your hardware device from the use of the Site or Site Services;
- the content, actions, or inactions of third parties’ use of the Site or Site Services;
- a suspension or other action taken with respect to your account;
- your reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), or metrics found on, used on, or made available through the Site; and
- your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
ADDITIONALLY, IN NO EVENT WILL TAXBUD, OUR AFFILIATES, OUR LICENSORS, OR OUR THIRD-PARTY SERVICE PROVIDERS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR INDIRECT COSTS OR DAMAGES, INCLUDING, BUT NOT LIMITED TO, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS, OR LOSS OF DATA, PRODUCTION, PROFIT, OR BUSINESS OPPORTUNITIES. THE LIABILITY OF TAXBUD, OUR AFFILIATES, OUR LICENSORS, AND OUR THIRD-PARTY SERVICE PROVIDERS TO ANY USER FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TERMS OF SERVICE WILL NOT EXCEED THE LESSER OF: (A) $2,500; OR (B) ANY FEES RETAINED BY TAXBUD WITH RESPECT TO SERVICE CONTRACTS ON WHICH USER WAS INVOLVED AS CLIENT OR SERVICE PROVIDER DURING THE SIX-MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. THESE LIMITATIONS WILL APPLY TO ANY LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TERMS OF SERVICE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL OF THE FOREGOING EXCLUSIONS AND LIMITATIONS, SO TO THAT EXTENT, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
In addition to the recognition that TaxBud is not a party to any contract between Users, you hereby release TaxBud, our Affiliates, and our respective officers, directors, agents, subsidiaries, joint ventures, and employees from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute you have with another User, whether it be at law or in equity. This release includes, for example and without limitation, any disputes regarding the performance, functions, and quality of the Services provided to Client by a Service Provider and requests for refunds based upon disputes. Procedures regarding the handling of certain disputes between Users are discussed in subsection 8.3 (Dispute Resolution).
You will indemnify, defend, and hold harmless TaxBud, our Affiliates, and our respective directors, officers, employees, representatives, and agents (each an “Indemnified Party”) from any and all claims, damages, liabilities, costs, losses, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by you or a third party or other User against an Indemnified Party relating to: (a) use of the Site and the Site Services by you or your agents, including any payment obligations incurred through use of the Site Services; (b) any Service Contract entered into by you or your agents, including, but not limited to, the classification of a Service Provider; the classification of TaxBud as an employer or joint employer of Service Provider; any employment-related claims, such as those relating to employment termination, employment discrimination, harassment, or retaliation; and any claims for unpaid wages or other compensation, overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits; (c) failure to comply with the Terms of Service by you or your agents; (d) failure to comply with applicable law by you or your agents; (e) negligence, willful misconduct, or fraud by you or your agents; and (f) defamation, libel, violation of privacy rights, unfair competition, or infringement of Intellectual Property Rights or allegations thereof to the extent caused by you or your agents.
19. AGREEMENT TERM AND TERMINATION
The Terms of Service as amended from time to time, will become effective on the later of the Effective Date or your first visit to the Site and will remain in effect for the duration of your use of the Site or Site Services. Unless both you and TaxBud agree otherwise in writing, neither of us may terminate this Agreement in our sole discretion, at any time. You may provide written notice to email@example.com. In the event you properly terminate this Agreement, your right to use the Site is automatically revoked, and your Account will be closed; however, (a) if you have any open Engagements when you terminate this Agreement, you will continue to be bound by this Agreement and the other Terms of Service until all such Engagements have closed on the Site; (b) TaxBud will continue to perform those Site Services necessary to complete any open Engagement or related transaction between you and another User; and (c) you will continue to be obligated to pay any amounts accrued but unpaid as of the date of termination or as of the completion of any open Engagements, whichever is later, to TaxBud for any Site Services and to any Service Providers for any Services. Without limiting any other provisions of the Terms of Service, the termination of this Agreement for any reason will not release you, any User with whom you have entered into a Service Contract, or TaxBud from any obligations incurred prior to termination of this Agreement or that thereafter may accrue in respect of any act or omission prior to such termination. Those portions of the Terms of Service necessary to implement the foregoing survive termination of this Agreement for any reason.
Without limiting TaxBud’s other rights or remedies, we may temporarily suspend, indefinitely suspend, or permanently revoke your access to the Site and refuse to provide any or all Site Services to you if: (i) you breach the letter or spirit of any terms and conditions of this Agreement or other parts of the Terms of Service; (ii) we suspect or become aware that you have provided false or misleading information to us; or (iii) we believe, in our sole discretion, that your actions may cause legal liability for you, our Users, or TaxBud or our Affiliates; may be contrary to the interests of the Site or the User community; or may involve illicit activity. If your Account is suspended or closed, you may not use the Site under the same Account or a different Account or reregister under a new Account without TaxBud’s prior written consent. If you attempt to use the Site under a different Account, we reserve the right to reclaim available funds associated with that Account and/or use an available Payment Method to pay for any amounts owed by you to the extent permitted by applicable law.
Without limiting TaxBud’s other rights or remedies, if you engage in actions or activities that circumvent the Site or otherwise reduce fees owed to TaxBud or our Affiliates under the Terms of Service, you must pay TaxBud, and you authorize TaxBud or its Affiliates to charge you, for all fees owed to TaxBud and our Affiliates and reimburse TaxBud for the Opt-Out Fee, if applicable, all losses and costs (including any and all time of TaxBud’s employees) and reasonable expenses (including attorneys’ fees) related to investigating such breach and collecting such fees. In addition, violations of the Terms of Service may be prosecuted to the fullest extent of the law and may result in additional penalties and sanctions.
If your Account is closed for any reason, you will no longer have access to data, messages, files, and other material you keep on the Site. If practicable or required by law, TaxBud will retain this information along with all your previous posts and proposals for a period of up to five years from the date of closure. However, you understand that any closure of your Account may involve deletion of any content stored in your Account for which TaxBud will have no liability whatsoever.
19.1 ENFORCEMENT OF AGREEMENT
TaxBud has the right, but not the obligation, to suspend or revoke your access to the Site and Site Services if we believe that you have violated or acted inconsistently with the letter or spirit of this Agreement or the Terms of Service or violated our rights or those of another party. Without limiting TaxBud’s other rights or remedies, we may suspend or close your Account, use self-help in connection with our rights to reclaim funds, and refuse to provide any further access to the Site or the Services to you if (a) you breach any terms and conditions of this Agreement or other Terms of Service; (b) we are unable to verify or authenticate any information you provide to us; or (c) we believe that your actions may cause legal liability for you, other Users, or TaxBud.
19.2 CONSEQUENCES OF AGREEMENT, TERMINATION
Termination of this Agreement and/or closing of your Account will not relieve Client of the requirement to pay for Services performed prior to the Effective Date of the termination or thereafter for any Service Contracts executed before termination of this Agreement, which fees and expenses, together with any applicable taxes, Client hereby authorizes TaxBud to charge to its Payment Method pursuant to Section 6 (Payment Terms). Subject to the applicable Dispute Resolution Procedures, TaxBud will pay Service Provider, in accordance with the provisions of Section 6 (Payment Terms) for all projects that were completed prior to the Effective Date of the termination or thereafter for any Service Contracts executed before termination of this Agreement.
Except as otherwise required by applicable law, we will notify you if we close your Account, unless we believe, in our sole judgment, that giving notice may cause damage. You acknowledge and agree that the value, reputation, and goodwill of the Site depend on transparency of User’s Account status to all Users, including both yourself and other Users who have entered into Service Contracts with you. You therefore agree as follows: IF TAXBUD DECIDES TO SUSPEND OR CLOSE YOUR ACCOUNT, TAXBUD HAS THE RIGHT BUT NOT THE OBLIGATION TO: (A) NOTIFY OTHER USERS THAT HAVE ENTERED INTO SERVICE CONTRACTS WITH YOU TO INFORM THEM OF YOUR SUSPENDED OR CLOSED ACCOUNT STATUS, AND (B) PROVIDE THOSE USERS WITH A SUMMARY OF THE REASONS FOR YOUR ACCOUNT SUSPENSION OR CLOSURE.
After this Agreement terminates, the terms of this Agreement and the other Terms of Service that expressly or by their nature contemplate performance after the Agreement terminates or expires will survive and continue in full force and effect. For example, the provisions protecting Confidential Information, requiring arbitration, permitting audits, protecting intellectual property, requiring non-circumvention, indemnification, payment of fees, reimbursement and setting forth limitations of liability each, by their nature, contemplate performance or observance after this Agreement terminates.
20. CANCELLATIONS, REFUNDS, AND DISPUTES
20.1 DISPUTE PROCESS AND SCOPE
For disputes arising between Clients and Service Providers, you agree to abide by the dispute process that is explained in the Escrow Instructions that apply to your particular Service Contract.
If a dispute arises between you and TaxBud or our Affiliates, our goal is to resolve the dispute quickly and cost-effectively. Accordingly, you, TaxBud, and our Affiliates agree to resolve any claim, dispute, or controversy that arises out of or relates to this Agreement, the other Terms of Service, your relationship with TaxBud (including any one of its Affiliates or successors), the termination of your relationship with TaxBud, or the Site Services (each, a “Claim”) in accordance with this Section. For the avoidance of doubt, Claims include, but are not limited to, all claims, disputes, or controversies arising out of or relating to the Terms of Service, any Service Contract, Service payments or agreements, any payments or monies you claim are due to you from TaxBud or its Affiliates or successors, trade secrets, unfair competition, false advertising, consumer protection, privacy, compensation, classification, minimum wage, seating, expense reimbursement, overtime, breaks and rest periods, termination, discrimination or harassment and claims arising under the Uniform Trade Secrets Act as enacted in any state, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for claims for employee benefits under any benefit plan sponsored by the Company and (a) covered by the Employee Retirement Income Security Act of 1974 or (b) funded by insurance), Affordable Care Act, Genetic Information Non-Discrimination Act, state statutes or regulations addressing the same or similar subject matters, and all other federal or state legal claims arising out of or relating to your relationship with TaxBud or the termination of that relationship. Only with respect to the Arbitration Provision, Claims do not include disputes that may not be subject to a pre-dispute arbitration agreement as provided by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203) and are excluded from the coverage of the Arbitration Provision.
You agree that any Claim must be resolved as described in the subsections below titled “Informal Dispute Resolution” and “Mandatory Binding Arbitration and Class Action/Jury Trial Waiver.”
20.2 CHOICE OF LAW
This Agreement, the other Terms of Service, and any Claim will be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG); provided, however, that any Claims made by any Service Provider located within the United States will be governed by the law of the state in which such Service Provider resides.
20.3 INFORMAL DISPUTE RESOLUTION
Before serving a demand for arbitration of a Claim, you agree to first notify TaxBud of the Claim by email to firstname.lastname@example.org, and TaxBud agrees to provide to you a notice at your email address on file (in each case, a “Notice”) and seek informal resolution of the Claim. Any Notice from you must include your name, pertinent account information, a brief description of the Claim, and your contact information, so that we may evaluate the Claim and attempt to informally resolve the Claim. Any Notice from TaxBud must include pertinent account information, a brief description of the Claim, and TaxBud’s contact information, so that you may evaluate the Claim and attempt to informally resolve the Claim. Both you and TaxBud will have 60 days from the date of the receipt of the Notice to informally resolve the other party’s Claim, which, if successful, will avoid the need for further action.
20.4 MANDATORY BINDING ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER (DOES NOT APPLY TO USERS LOCATED OUTSIDE THE UNITED STATES AND ITS TERRITORIES)
This Mandatory Binding Arbitration and Class Action/Jury Trial Waiver provision (“Arbitration Provision”) applies to all Users except Users located outside of the United States and its territories.
In the unlikely event the parties are unable to resolve a Claim within 60 days of the receipt of the applicable Notice, you, TaxBud, and our Affiliates agree to resolve the Claim by binding arbitration before an arbitrator from JAMS. JAMS may be contacted at www.jamsadr.com.
A. SCOPE OF ARBITRATION AGREEMENT AND CONDUCT OF ARBITRATION
Arbitration as provided in this Mandatory Binding Arbitration and Class Action/Jury Trial Waiver provision (“Arbitration Provision”) is governed by the United States Federal Arbitration Act (9 U.S.C. §§ 1 et seq.). This Arbitration Provision applies to any Claim the parties may have and survives after your relationship with TaxBud ends. This Arbitration Provision is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before a forum other than arbitration. If for any reason JAMS will not administer the arbitration, either party may apply to a court of competent jurisdiction with authority over the location where the arbitration will be conducted for appointment of a neutral arbitrator.
Except as otherwise provided herein, arbitration will be conducted in Hennepin County, Minnesota in accordance with the JAMS Comprehensive Arbitration Rules and Procedures under the Optional Expedited Arbitration Procedures then in effect for JAMS. Arbitration Rules and Procedures then in effect. The JAMS arbitration rules may be found at www.jamsadr.com or by searching online for “JAMS Comprehensive Arbitration Rules and Procedures” or “JAMS Employment Arbitration Rules.” The parties agree that any party will have the right to appear at the arbitration by telephone and/or video rather than in person.
You and TaxBud will follow the applicable JAMS rules with respect to arbitration fees. In any arbitration under the JAMS Employment Arbitration Rules and Procedures, the Service Provider will pay JAMS arbitration fees only to the extent those fees are no greater than the filing or initial appearance fees applicable to court actions in the jurisdiction where the arbitration will be conducted. The arbitrator must follow applicable law and may award only those remedies that would have applied had the matter been heard in court. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction.
This Arbitration Provision also does not apply to claims for workers compensation, state disability insurance or unemployment insurance benefits. Either you or TaxBud may apply to a court of competent jurisdiction for provisional injunctive relief in connection with an arbitrable controversy, but only upon the ground that the award to which that party may be entitled may be rendered ineffectual without such relief; the arbitrator will render the final judgment in the matter.
Regardless of any other terms of this Arbitration Provision, a claim may be brought by or to, and remedies awarded by, an administrative agency if applicable law permits the agency to adjudicate, investigate or prosecute the claim notwithstanding the existence of this agreement to arbitrate. Such administrative claims include without limitation claims or charges brought before the U.S. Equal Employment Opportunity Commission, the U.S. Department of Labor, or the National Labor Relations Board. Nothing in this Arbitration Provision will be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party’s obligation to exhaust administrative remedies before making a claim in arbitration, if any.
B. INTERPRETATION AND ENFORCEMENT OF THIS ARBITRATION PROVISION
This Arbitration Provision is the full and complete agreement relating to the formal resolution of Claims. For the avoidance of doubt, this Arbitration Provision covers, and the arbitrator shall have exclusive jurisdiction to decide, all disputes arising out of or relating to the interpretation, enforcement, or application of this Arbitration Provision, including the enforceability, revocability, scope, or validity of the Arbitration Provision or any portion of the Arbitration Provision. All such matters shall be decided by an arbitrator and not by a court. The parties expressly agree that the arbitrator and not a court will decide any question of whether the parties agreed to arbitrate, including but not limited to any claim that all or part of this Agreement or any other part of the Terms of Service is void or voidable.
In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable. If any portion of the Class Action Waiver in subsection C, below, of this Arbitration Provision is deemed to be unenforceable, you and TaxBud agree that this Arbitration Provision will be enforced to the fullest extent permitted by law.
C. CLASS ACTION AND JURY TRIAL WAIVER
This arbitration provision affects your ability to participate in class, collective or representative actions. Both you and TaxBud agree to bring any dispute in arbitration on an individual basis only, and not on a class, collective, or representative basis on behalf of others. There will be no right or authority for any dispute to be brought, heard or arbitrated as a class, collective, representative or private attorney general action, or as a member in any such class, collective, representative or private attorney general proceeding (“Class Action Waiver”). The Class Action Waiver does not prevent you from bringing a Claim in arbitration as a private attorney general solely on your own behalf and not on behalf of others. Notwithstanding any other portion of this Arbitration Provision or the JAMS Rules, the arbitrator will have authority to hear any Claim on a class, collective, or representative basis if, only if, and only to the extent that, the arbitrator determines that the waiver of such class, collective, or representative Claim is unenforceable. You and TaxBud agree that you will not be retaliated against, disciplined or threatened with discipline as a result of exercising any rights of the National Labor Relations Act by filing or participating in a class, collective or representative action in any forum. However, TaxBud may lawfully seek enforcement of this arbitration provision and the Class Action Waiver under the Federal Arbitration Act and seek dismissal of such class, collective or representative actions or claims.
D. RIGHT TO OPT OUT OF ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER.
You may opt out of the foregoing arbitration and class action/jury trial waiver provision of this Agreement by notifying TaxBud in writing within 30 days of the date you first registered for the Site. To opt out, you must send a written notification to TaxBud and submit via email to TaxBud at email@example.com notifying TaxBud of (a) your account username, (b) your name, (c) your address, (d) your telephone number, (e) your email address, and (f) a clear statement indicating that you do not wish to resolve claims through arbitration and demonstrating compliance with the 30-day time limit to opt out of the above arbitration and class action/jury trial waiver provisions.
21.1 ENTIRE AGREEMENT
This Agreement, together with the other Terms of Service, sets forth the entire agreement and understanding between you and TaxBud relating to the subject matter hereof and thereof and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between you and us, written or oral, to the extent they relate in any way to the subject matter hereof and thereof. The section headings in the Terms of Service are included for ease of reference only and have no binding effect. Even though TaxBud drafted the Terms of Service, you represent that you had ample time to review and decide whether to agree to the Terms of Service. If an ambiguity or question of intent or interpretation of the Terms of Service arises, no presumption or burden of proof will arise favoring or disfavoring you or TaxBud because of the authorship of any provision of the Terms of Service.
21.2 SIDE AGREEMENTS
Notwithstanding subsection 21.1 (Entire Agreement), Clients and Service Providers may enter into any supplemental or other written agreements that they deem appropriate (e.g., confidentiality agreements, invention assignment agreements, assignment of rights, etc.). The terms and conditions of the Terms of Service, however, will govern and supersede any term or condition in a side agreement that purports to expand TaxBud’s obligations or restrict TaxBud’s rights under the Terms of Service.
User will not violate any applicable foreign, federal, state, or local laws or third-party rights on or related to the Site. Without limiting the generality of the foregoing, User agrees to comply with all applicable laws and regulations, including, but not limited to, import and export control laws and third parties’ Intellectual Property Rights.
No modification or amendment to the Terms of Service will be binding upon TaxBud unless in a written instrument signed by a duly authorized representative of TaxBud. For the purposes of this subsection, a written instrument will expressly exclude electronic communications, such as email and electronic notices, but will include facsimiles. This Section 22.4 (Modifications) does not apply to amendments to the Terms of Service posted by TaxBud to the Site from time to time.
21.5 NO WAIVER
The failure or delay of either party to exercise or enforce any right or claim does not constitute a waiver of such right or claim and will in no way affect that party’s right to later enforce or exercise it, unless such party issues an express written waiver, signed by a duly authorized representative of such party.
User may not assign the Terms of Service, or any of its rights or obligations hereunder, without TaxBud’s prior written consent in the form of a written instrument signed by a duly authorized representative of TaxBud (and, for the purposes of this subsection, a written instrument will expressly exclude electronic communications such as email and electronic notices, but will include facsimiles). TaxBud may freely assign this Agreement or the other Terms of Service without User’s consent. Any attempted assignment or transfer in violation of this subsection will be null and void. Subject to the foregoing restrictions, the Terms of Service will inure to the benefit of the successors and permitted assigns of the parties.
If and to the extent any provision of this Agreement or the other Terms of Service is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.
21.8 FORCE MAJEURE
The parties to this Agreement will not be responsible for the failure to perform or any delay in performance of any obligation hereunder due to labor disturbances, accidents, fires, floods, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other similar conditions beyond the reasonable control of such party. The time for performance of such party will be extended by the period of such delay. Irrespective of any extension of time, if an event of Force Majeure occurs and its effect continues for a period of 60 days, either the party may give to the other a 30-day notice of termination.
21.9 PREVAILING LANGUAGE AND LOCATION
The English language version of the Terms of Service will be controlling in all respects and will prevail in case of any inconsistencies with translated versions, if any. The Site is controlled and operated from our facilities in the United States. TaxBud makes no representations that the Site is appropriate or available for use in other locations. Those who access or use the Site from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable foreign, United States, state, and local laws and regulations, including, but not limited to, export and import regulations, including the Export Administration Regulations maintained by the United States Department of Commerce and the sanctions programs maintained by the Department of the Treasury Office of Foreign Assets Control. You must not directly or indirectly sell, export, re-export, transfer, divert, or otherwise dispose of any software or service to any end user without obtaining any and all required authorizations from the appropriate government authorities. You also warrant that you are not prohibited from receiving U.S. origin products, including services or software. You may not use or access the Site if you are: (a) a resident of a geographic area embargoed by the United States; (b) subject to United States economic sanctions that prohibit your use or access to the Site; or (c) a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Site are solely directed to individuals, companies, or other entities located in the United States.
22. CONTACTING US
If you have questions or need assistance, please contact Customer Support.