TaxAct Terms of Service and License Agreement
Please see information about our terms that may affect Pennsylvania TaxAct customers if you used our online consumer 1040 services from 2018 to 2022.
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JAMES KIRKHAM, Plaintiff,
TAXACT, INC., Defendant.
CIVIL ACTION NO. 23-3303
O R D E R
AND NOW, this 12th day of February 2024, upon consideration of Plaintiff’s Motion for a Protective Order (ECF 36) and Defendant’s response thereto (ECF 40), the Motion is GRANTED as follows:
1. It is HEREBY ORDERED that:
a. TaxAct shall not enforce Sections 9, 13 and 14 of the 2023 Terms of Service against any member of any class that is certified in this action; and,
b. TaxAct shall not enforce Sections 9, 13 and 14 of the 2023 Terms of Service against any member of the putative Class or putative Married Join Filer Class with respect to any claims that have been or could be asserted in this matter.
2. It is FURTHER ORDERED that TaxAct is prohibited from communicating with any member of the putative Classes in this Action regarding the subject matter in this action, including any claims and defenses and the resolution or settlement of this Action, without the prior approval of this Court.
In all other respects, Plaintiff’s Motion is DENIED WITHOUT PREJUDICE.
Defendant SHALL no later than February 19, 2024 post prominently on its website at https://www.taxact.comlegal-notice this Order in full (not by way of a link) on the same page as its December 22, 2023 update to its Terms of Service and License Agreement immediately above such update.
BY THE COURT:
/s/ Wendy Beetlestone
WENDY BEETLESTONE, J.
Last Updated: December 22, 2023
This Terms of Service and License Agreement (this “Agreement") is a legally-binding contract between TaxAct ("TaxAct", "we", "us", or "our") and you ("you", "your", or "user"), a visitor or user of TaxAct's websites, mobile applications, online and offline tax return preparation products, and related services, and, if selected by you, TaxAct's electronic filing services along with any of our other services which link to this Agreement (collectively, the "Services").
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SERVICES AS THIS AGREEMENT AFFECTS YOUR LEGAL RIGHTS AND GOVERNS HOW CLAIMS THAT YOU AND WE MAY HAVE AGAINST EACH OTHER ARE RESOLVED. This Agreement contains a class action waiver provision that requires the parties to resolve all disputes on an individual basis and limits the remedies available to you in the event of certain disputes relating to the operation or use of the services (Section 13). Further, as outlined in Section 13 of this Agreement, unless you opt out of arbitration within 30 days of the date you agree to this Agreement, you agree that any dispute that cannot be informally resolved between us will be resolved by binding, individual arbitration and you waive your right to participate in a class action lawsuit or class-wide arbitration.
You may not use the Services until you have read and agreed to this Agreement. BY DOWNLOADING, ACCESSING OR USING THE SERVICES, YOU INDICATE YOUR UNCONDITIONAL ACCEPTANCE OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU MUST TERMINATE YOUR USE OF THE SERVICES.
A "registered user” is a user from whom TaxAct has received the information necessary to permit such person to print or electronically file a tax return prepared using the Services and who complies with the terms and conditions of this Agreement.
TABLE OF CONTENTS
Ownership; Limited License; Copyright & Trademark Ownership
Electronic Filing Services
Satisfaction Guaranteed for Registered Users
Limited Warranty for TaxAct Products
Third Party Offerings
Release for Operation and Use of the Services
Disclaimer of Warranties
Limitation of Liability and Damages
Dispute Resolution; Informal Resolution; Class Waiver; Binding Arbitration; Coordination of Claims & Termination of Rights
Jurisdiction and Venue
Changes to the Terms of Service
1. Ownership; Limited License; Copyright & Trademark Ownership.
The Services and all related text, graphics, images, photographs, videos, illustrations, computer code, and other information, materials and content contained in the Services or provided by TaxAct in connection therewith (collectively, "Content") are owned by or licensed to TaxAct and are protected under both United States and foreign laws. Except as explicitly stated in this Agreement, TaxAct and its licensors reserve all right in and to the Services and Content.
Limited License to Services.
Subject to your continued compliance with this Agreement, including payment of any applicable fees, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use the Services for your personal purposes. You may only use the TaxAct tax preparation software (whether online, downloaded, or via mobile application) to prepare one valid and complete tax return per applicable service fee paid and, after proper registration and any applicable payment, to file electronically and/or print such tax return. Unless you have purchased a license to one of TaxAct’s Professional products, you will not use the Services for commercial purposes, including, but not limited to using the Services to prepare tax returns, schedules or worksheets for others as part of a service offering.
Limited License to Content.
Subject to this Agreement, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to electronically copy and print portions of Content to hardcopy for the sole purpose of your personal, non-commercial use in researching and making a decision to purchase Services. Any other use of the Content—including reproductions other than specified, modifications, distribution, or republication—without the prior written permission of TaxAct is strictly prohibited.
The license granted to you is subject to this Agreement and does not include any right to (a) sell, mirror, frame, resell or commercially use our Services or Content; (b) copy, reproduce, distribute, publicly perform or publicly display any Services or Content; (c) modify, or create derivative works based on, the Services or Content; (d) remove or alter any proprietary rights notices or markings on or in the Services or Content; (e) use any data mining, robots, artificial intelligence, or similar data gathering or extraction methods in relation to the Services or Content; (f) use our Services or Content other than for their intended purposes; (g) transmit any viruses, malware, or other malicious code or software through the Services or otherwise interfere or attempt to interfere with the normal operation of the Services; (h) attempt to gain unauthorized access to TaxAct's or any third party's systems, networks, or data; (i) use the Services to transmit any fraudulent information, create any false identity, or misrepresent your identity; or (j) otherwise use the Services or Content in violation of any applicable law. Any use of our Services or Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the permissions granted in this Agreement.
TaxAct® and the associated logos and any other TaxAct service names, logos or slogans that may appear on the Services are trademarks of TaxAct and our licensors and may not be copied, imitated or used, in whole or in part, without our or the applicable trademark holder's prior written permission. You may not use metatags or other "hidden text" utilizing "TaxAct" or any other name, trademark or product or service name of TaxAct. In addition, the look and feel of the Services, including, without limitation, all page headers, custom graphics, button icons and scripts, constitute the service mark, trademark or trade dress of TaxAct and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Services are the property of their respective owners and may not be copied, imitated or used, in whole or in part, without the permission of the applicable trademark holder.
2. User Responsibility
You agree that you are responsible for submitting accurate and complete information while preparing your tax return and for reviewing your tax return for indications of obvious errors prior to electronically filing or printing your return. TaxAct may, but is under no obligation to, make certain non-substantive (e.g., formatting) changes to your return in conformance with various e-filing requirements and standards. You are also responsible for acquiring and maintaining all equipment, computers, software and communications or Internet services (such as data or long distance phone charges) relating to your access and use of the Services, and for all expenses relating thereto (plus applicable taxes). You must use your valid form of payment to pay all fees and charges related to the Services and, except as otherwise provided herein, all fees and charges are non-refundable. YOU ARE RESPONSIBLE FOR MEETING ANY TAX FILING DEADLINES. WE CANNOT GUARANTEE HOW LONG IT WILL TAKE TO COMPLETE AND FILE YOUR RETURN, SO YOU ARE RESPONSIBLE FOR PREPARING YOUR RETURN EARLY ENOUGH TO ENSURE IT CAN BE FILED BEFORE ANY APPLICABLE DEADLINES.
TaxAct may offer you the ability to use certain informative tools, including, without limitation, for example, a tax estimator/calculator, interview questions related to life events, or a deduction maximizer. YOU ACKNOWLEDGE AND AGREE THAT THESE TOOLS ARE PROVIDED MERELY AS A CONVENIENCE TO OUR USERS, AND THAT YOU RETAIN ULTIMATE RESPONSIBILITY FOR ENSURING THE ACCURACY AND COMPLETENESS OF ANY INFORMATION YOU SUBMIT WHILE USING THE SERVICES. THE DEDUCTION MAXIMIZER IS INTENDED TO HIGHLIGHT CERTAIN COMMONLY-USED DEDUCTIONS FOR FILERS LISTING A PARTICULAR OCCUPATION. IT IS SOLELY YOUR RESPONSIBILITY TO DETERMINE, BASED ON YOUR SPECIFIC CIRCUMSTANCES, IF SUCH DEDUCTIONS APPLY TO YOU AND IF OTHER DEDUCTIONS, THAT MAY NOT HAVE BEEN HIGHLIGHTED BY THE TOOL, MAY APPLY TO YOU.
You are the only person authorized to use your user identification and password, and you shall not permit or allow other people to have access to or use the same. You are responsible for maintaining the confidentiality of your user identification and password. You are responsible for any actions taken using your user identification and password. You are responsible for ensuring that all information in your account, including without limitation your contact information, is and remains, at all times, complete and accurate.
You acknowledge and agree that you are solely responsible for all content, data, and information submitted by your user identification into the Services, including, without limitation, content, data, and information relating to third parties.
You hereby indemnify and hold harmless TaxAct from and against any third party claims, liabilities, costs and expenses, including attorney’s fees, related to such content, data, and information submitted by you. You further acknowledge and agree that you are solely responsible for implementing and responding to any third party requests to modify, update, delete, or otherwise alter any content, data, and information that you have submitted into the Service.
To the fullest extent permitted by applicable law, TaxAct has no obligation to store or maintain any information you provide to it, and you are responsible for printing or saving a copy of your tax return for your records.
3. Electronic Communications
By creating a TaxAct account, you consent to receive electronic communications from TaxAct (e.g., SMS or text messaging, telephone, via email, or by posting notices on our Services). These communications may include notices about your account (e.g., authentication, payment authorizations, password changes and other transactional information) or legal notices and are part of your relationship with us. When permitted by applicable law, we may also send you promotional communications via email, including newsletters, special offers, surveys and other information we think may be of interest to you. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided in such emails. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing.
By providing your phone number to us through the Services or otherwise, you consent to receive calls or text messages from us for operational or informational purposes. We may use our service providers, including an automated telephone dialing system, to send these calls or messages from us to you. You will receive operational or informational messages as described above when you first consent to texts and every time you sign in to verify and authenticate your account, should you choose not to remember the device.
From time to time, we may also ask for your consent to send you marketing calls or text messages. Your consent to receive marketing calls or text messages is not required to purchase goods or services from us.
You can cancel SMS services at any time by texting STOP to the short code. After you send the SMS message STOP to us, we will send you an SMS message to confirm that you have been unsubscribed. After this, you will no longer receive SMS messages from us. If you want to receive SMS messages again, you may sign up as you did previously. If you are experiencing issues with the messaging program, you can reply with the keyword HELP for more assistance, or you can get help directly at SMS@taxact.com or (319) 373-3600.
Carriers are not liable for delayed or undelivered messages. As always, message and data rates may apply for any messages sent to you from us and to us from you. Message frequency varies. Please review applicable additional terms carefully when you provide your mobile phone number for marketing purposes. If you have any questions about your text plan or data plan, it is best to contact your wireless provider.
If you have any questions regarding privacy, please read our privacy notice at http://www.taxact.com/privacy-notice.
4. Electronic Filing Services
If you choose to file your return electronically, your tax return will be forwarded to TaxAct's Electronic Filing Center, where it will be converted to and stored in a standardized format and then, transmitted to the applicable federal or state taxing authority. TaxAct cannot guarantee that the taxing authority will accept your return, as rejections may occur due to circumstances beyond TaxAct's control (e.g., incorrect user information, malfunction of the taxing authority's system, etc.). Your e-filing fee, if any, is non-refundable even if your return is rejected by the taxing authority. You are responsible for verifying the status of your return to confirm that it has been received and accepted by the applicable taxing authority and, if necessary, for filing it manually. The Internal Revenue Service (IRS) requires TaxAct to provide notification to it of information relating to your use of the Services, such as notice of your electronic filing of your tax return, of the Internet Protocol (IP) address and other device information of the computer from which your return originated, and of whether your email address was collected. By using the Services to prepare and submit your tax return, you consent to the disclosure to the IRS and any other tax authority, revenue authority, or other governmental authority with jurisdiction of any information pertaining to your use of the Services. You agree that TaxAct is permitted to access and use any tax return and other information provided by you to perform the Services and, if necessary, to access such information to obtain contact information in order to provide you with notifications relating to the Services.
TaxAct has the right at any time and for any reason to modify or discontinue the Services or any aspect or feature of the Services, including but not limited to their Content, functionality or hours of availability, the equipment needed for its access or use, or pricing. In addition, TaxAct reserves the right, at any time, to change the terms of this Agreement. If TaxAct makes changes to this Agreement, TaxAct will provide you with notice of such changes, such as by sending an email to the email address associated with your account, posting a notice on the Services or updating the date at the top of this Agreement. Your continued use of the Services after any such changes will confirm your acceptance of the then-current version of this Agreement. ’If you do not agree with any such changes, you must immediately discontinue your use of the Services.
6. Satisfaction Guaranteed for Registered Users
If you are a registered user using the Services online and are dissatisfied with the Services prior to completing the billing steps within the program, your exclusive remedy is to immediately discontinue using the Services. If you are a registered user who completed the billing steps and have not printed or e-filed or your e-file was rejected by the IRS or State and you cannot re-file, it is your responsibility to contact us within the calendar year of the purchase to request a refund of fee(s) paid.
7. Limited Warranty for TaxAct Products
TaxAct warrants the accuracy of its calculations to registered users of its consumer (not professional or small business) tax filing products. If you are a registered user of one of these consumer products and you (a) e-file your return (b) are not a current and former employees of TaxAct or any other company offering tax return preparation products, and (c) either ultimately receive a smaller tax refund, ultimately owe a larger tax liability, or pay an IRS penalty solely because of a calculation error within the product and not as a result of, among other things, your failure to enter all required information accurately, your overriding of the results of calculations generated by the product, your willful or fraudulent omission or inclusion of information on your tax return, your misclassification of information on your tax return, or your failure to file an amended return to avoid or reduce your penalty after TaxAct has announced updates or corrections to its products, then TaxAct will (i) pay to you the amount of the difference attributable to any smaller tax refund ultimately received or larger tax liability ultimately owed as compared to the amount determined without error by another tax preparation product using the same data; and (ii) pay to you the original assessment amount of the IRS penalty and interest paid by you to the IRS; provided that any such amounts to be paid to you by TaxAct shall not exceed one hundred thousand dollars ($100,000). TaxAct encourages you to visit TaxAct's website for updated information on the Services (www.taxact.com/support). You are responsible for keeping TaxAct apprised promptly of any change in your email so that notices of such updates or corrections can be provided by TaxAct. If you believe that a product calculation error occurred and you have complied with the above conditions, please notify TaxAct in writing at TaxAct, Customer Support, 3200 Olympus Blvd, Suite 150, Dallas, Texas 75019 as soon as you learn of the mistake (and in no event later than 60 days from when you filed your return or, in the event of a claimed penalty, 30 days after the penalty is assessed). You must include a copy of the IRS notice, a copy of the applicable hardcopy tax return, and your user identification information. Your filing of such a claim shall constitute your authorization for TaxAct to obtain and review any data files that may be in TaxAct's possession or control in order to evaluate your claim. You are responsible for paying any additional tax liability you may owe, and providing assistance and additional information as reasonably requested by TaxAct.
8. Third Party Offerings
THE SERVICES AND CONTENT MAY CONTAIN LINKS TO, OR INFORMATION REGARDING, THIRD PARTY WEBSITES, PRODUCTS, OR SERVICES (COLLECTIVELY, "THIRD PARTY OFFERINGS"). TAXACT OFFERS SUCH LINKS AND INFORMATION FOR YOUR CONVENIENCE, BUT DOES NOT CONTROL OR ENDORSE ANY THIRD PARTY OFFERINGS. YOU AGREE THAT TAXACT IS NOT LIABLE FOR THE CONTENT, ACCURACY, FUNCTIONALITY, OR ANY OTHER ASPECT OF ANY THIRD-PARTY OFFERINGS AND THAT TAXACT IS NOT RESPONSIBLE FOR THE ACTS, OMISSIONS, POLICIES, OR PROCEDURES OF ANY SUCH THIRD PARTY. ANY TRANSACTIONS THAT YOU CHOOSE TO ENTER INTO WITH ANY THIRD PARTY IS BETWEEN YOU AND THE APPLICABLE THIRD PARTY, AND TAXACT WILL NOT BE A PARTY TO OR HAVE ANY LIABILITY WITH REGARDS TO SUCH TRANSACTIONS.
9. Release for Operation and Use of the Services
To the fullest extent permitted by applicable law, you release TaxAct from responsibility, liability, claims, demands, and/or damages of every kind and nature, in any way arising out of or related to the operation, or your use, of the Services or any Content that in any way arise out of or related to the acts or omissions of third parties ("Third Party Disputes") except as expressly provided in Section 7, Limited Warranty. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE ANY RIGHTS YOU MAY HAVE ARISING OUT OF THESE TERMS UNDER CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY." YOU ALSO WAIVE ANY RIGHTS YOU MAY HAVE WITH RESPECT TO THIRD PARTY DISPUTES UNDER ANY OTHER STATUTE OR COMMON LAW PRINCIPLES THAT WOULD OTHERWISE LIMIT THE COVERAGE OF THIS RELEASE TO INCLUDE ONLY THOSE CLAIMS WHICH YOU MAY KNOW OR SUSPECT TO EXIST IN YOUR FAVOR AT THE TIME OF AGREEING TO THIS RELEASE.
10. Disclaimer of Warranties
EXCEPT AS EXPRESSLY PROVIDED BY TAXACT TO THE CONTRARY, THE SERVICES AND CONTENT ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, TAXACT AND ITS PARENT, SUBSIDIARIES AND AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, CONSULTANTS, AGENTS, ASSIGNS, LICENSORS, DISTRIBUTORS, ADVERTISERS, WEB-LINK PROVIDERS, DEALERS OR SUPPLIERS (COLLECTIVELY, THE "PARTICIPATING PARTIES") DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SERVICES, CONTENT, AND RELATED MATERIALS, INCLUDING, WITHOUT LIMITATION, THEIR FITNESS FOR A PARTICULAR PURPOSE, THEIR QUALITY, THEIR MERCHANTABILITY, AND THEIR NON-INFRINGEMENT.
TAXACT DOES NOT WARRANT THAT THE SERVICES ARE ACCURATE, COMPLETE OR FREE OF ERRORS, INTERRUPTIONS, VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE SERVICES WILL BE AVAILABLE 24 HOURS PER DAY, SEVEN DAYS PER WEEK. YOU FURTHER ACKNOWLEDGE THAT THE OPERATION AND AVAILABILITY OF THE COMMUNICATIONS SYSTEMS USED FOR ACCESSING AND INTERACTING WITH THE SERVICES (E.G., THE PUBLIC TELEPHONE, COMPUTER NETWORKS AND THE INTERNET) OR TRANSMITTING INFORMATION TO THE TAXING AUTHORITIES CAN BE UNPREDICTABLE AND MAY, FROM TIME TO TIME, INTERFERE WITH OR PREVENT ACCESS TO THE SERVICES OR THEIR OPERATION. TAXACT IS NOT IN ANY WAY RESPONSIBLE FOR ANY SUCH INTERFERENCE WITH, OR PREVENTION OF, YOUR USE OF OR ACCESS TO SERVICES BEYOND THE REASONABLE CONTROL OF TAXACT.
TAXACT DOES NOT PROVIDE TAX ADVICE. ANY INFORMATION CONTAINED ON THE TAXACT WEBSITE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY, AND YOU ARE RESPONSIBLE FOR CONSULTING WITH YOUR OWN PROFESSIONAL TAX ADVISORS CONCERNING YOUR SPECIFIC TAX CIRCUMSTANCES. TAXACT DISCLAIMS ANY RESPONSIBILITY FOR THE VALIDITY, ACCURACY, OR ADEQUACY OF ANY POSITIONS TAKEN BY USERS IN THEIR TAX RETURNS. ALL WARRANTIES OR GUARANTEES GIVEN OR MADE BY TAXACT WITH RESPECT TO THE SERVICES (1) ARE FOR THE BENEFIT OF THE REGISTERED USER OF THE SERVICES ONLY AND ARE NOT TRANSFERABLE, AND (2) SHALL BE NULL AND VOID IF YOU BREACH ANY TERMS OR CONDITIONS OF THIS AGREEMENT.
11. Limitation of Liability and Damages
EXCEPT AS PROVIDED UNDER THE LIMITED WARRANTY FOR TAXACT PRODUCTS DESCRIBED ABOVE, AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE ENTIRE LIABILITY OF TAXACT AND THE PARTICIPATING PARTIES (JOINTLY) FOR ANY REASON SHALL BE LIMITED TO THE AMOUNT PAID BY YOU FOR THE SERVICES AND CONTENT.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER TAXACT NOR THE PARTICIPATING PARTIES WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS OR INVESTMENT, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF TAXACT OR THE PARTICIPATING PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
THE LIMITATIONS SET FORTH IN THIS SECTION WILL NOT LIMIT OR EXCLUDE TAXACT OR THE PARTICIPATING PARTIES' LIABILITY FOR PRODUCT LIABILITY CLAIMS THAT ARISE IN CONNECTION WITH THE ACCESS OR USE OF THE SERVICES OR FOR TAXACT'S OR THE PARTICIPATING PARTIES' GROSS NEGLIGENCE, FRAUD, OR INTENTIONAL, WILLFUL, MALICIOUS, OR RECKLESS MISCONDUCT.
TaxAct shall have the right to immediately terminate your access to or use of the Services in the event of any activities which breach this Agreement or conduct which, in TaxAct’s sole judgment, interferes with the operation or use of the Services (e.g., excessive usage of the Services which disrupts the use of the Services by other users) or your failure to consent to the terms of this Agreement, any updates or amendments to this Agreement, or other policies or terms, such as our Privacy Notice, related to the use of our services. Termination of this Agreement automatically terminates your license and authorization to use the Services and Content.
This Agreement, TaxAct’s Privacy Notice, and any terms associated with any particular offer for use of the Services set forth TaxAct’s and the Participating Parties’ entire liability and your exclusive remedy with respect to the Services, comprise a complete statement of the agreement between you and TaxAct regarding the subject matter thereof, and supersede any prior understandings with regards to such subject matter. In the event of any conflict between the terms of this Agreement and another policy or offer terms, the conflicting terms shall, if possible, be read so as to avoid the conflict and, should the conflict be unavoidable, the terms of this Agreement shall control. This Agreement does not limit any rights that TaxAct may have under trade secret, trademark, copyright, patent or other laws. The employees of TaxAct and the Participating Parties are not authorized to make modifications to this Agreement, or to make any additional representations, commitments, or warranties binding on TaxAct, except in a writing signed by an authorized officer of TaxAct. If any provision of this Agreement is invalid or unenforceable under applicable law, then it shall be, to that extent, deemed omitted and the remaining provisions will continue in full force and effect.
13. Dispute Resolution; Informal Resolution; Class Waiver; Binding Arbitration; Coordinated Disputes & Termination of Rights
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT LIMITS CERTAIN LEGAL RIGHTS, INCLUDING THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS, COLLECTIVE, OR REPRESENTATIVE CLAIM, DISPUTE OR ACTION, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. Other rights that we or you would have in court, such as an appellate review, also may not be available in the arbitration process described within this section.
In the unlikely event that a disagreement arises between you and TaxAct regarding any claim or controversy at law or equity arising out of, relating to, or connected in any way with the Services (collectively, "Dispute"), prior to initiating any legal action, you must first contact us directly by email at firstname.lastname@example.org. You must describe the nature of the Dispute, the basis for your Dispute and the resolution you are seeking.
You agree that the term "Dispute" in these Terms and Conditions will have the broadest meaning possible. These Terms and Conditions also cover any Dispute between you and any officer, director, board member, agent, employee, affiliate of TaxAct, or third party if TaxAct could be liable, directly or indirectly, for such Dispute.
During the 60 days from the date you first contacted us, you and we agree to engage in good faith efforts to resolve the Dispute and you will not initiate any legal action during this period. You and we agree to toll any statutes of limitations that may apply, along with any filing deadlines during this 60 day time period.
YOU AND TAXACT AGREE THAT ANY DISPUTE ARISING OUT OF OR RELATED TO THIS AGREEMENT OR OUR SERVICES IS PERSONAL TO YOU AND TAXACT AND THAT ANY DISPUTE WILL BE RESOLVED SOLELY THROUGH INDIVIDUAL ARBITRATION AND WILL NOT BE BROUGHT AS A CLASS ARBITRATION, CLASS ACTION OR ANY OTHER TYPE OF REPRESENTATIVE PROCEEDING, WHETHER WITHIN OR OUTSIDE OF ARBITRATION.
If the Dispute is not resolved within the 60 day informal resolution period (and the parties do not agree to extend the period), you and we agree that the Dispute will be resolved entirely through binding individual arbitration in Dallas County, Texas or the location of the registered user, or as we and you otherwise agree in writing. If the parties have more than one Dispute between them, you and we agree to assert all such Disputes in a single arbitration so they may be resolved at the same time or they will be deemed waived.
We agree to meet and confer to select a neutral arbitrator. If we are unable to agree on an arbitrator, you or we may petition the state or federal courts sitting in Dallas County, Texas to appoint an arbitrator from the arbitrators that you and we propose. Regardless of the arbitrator or arbitration provider selected, the arbitration shall be administered pursuant to JAMS Streamlined Arbitration Rules and procedures or other comparable rules to which you and we agree.
WITH ARBITRATION (i) THERE IS NO JUDGE OR JURY, (ii) THE ARBITRATION PROCEEDINGS AND ARBITRATION OUTCOME ARE SUBJECT TO CERTAIN CONFIDENTIALITY RULES, AND (iii) JUDICIAL REVIEW OF THE ARBITRATION OUTCOME IS LIMITED. The arbitrator’s award shall be final and binding and may be entered as a judgment in any court of competent jurisdiction.
You and TaxAct agree that the terms of this Agreement affect interstate commerce and that the enforceability of this Section will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the "FAA"), to the maximum extent permitted by applicable law. As limited by the FAA, this Agreement and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Dispute and to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by this Agreement. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. You and TaxAct agree that for any arbitration you initiate, you will pay the filing fee and TaxAct will pay the remaining arbitration provider’s fees and costs. For any arbitration initiated by TaxAct, TaxAct will pay all of the arbitration provider’s fees and costs. You and TaxAct agree that the state or federal courts of the State of Texas and the United States sitting in Dallas County, Texas have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
Notwithstanding the forgoing, this Agreement shall not require arbitration of the following Disputes (i) qualifying individual Disputes in small claims court in the county of your or TaxAct’s billing address. and/or (ii) injunctive or other equitable relief in a court of competent jurisdiction in Texas for the alleged unlawful use of intellectual property.
You and we agree that the following procedures apply for Coordinated Disputes. If twenty-five (25) or more similar Disputes are asserted against TaxAct at or around the same time by the same or coordinated counsel or are otherwise consistent or coordinated ("Coordinated Disputes"), and your Dispute is one such Dispute, you understand and agree that the resolution of your Dispute might be delayed. Further, you agree that TaxAct, in its sole discretion, may elect to opt the Disputes out of arbitration and require the Disputes to proceed in a court of competent jurisdiction in Dallas County, Texas consistent with the remainder of this Agreement, including the class and collective action waiver. Notwithstanding this option available to TaxAct, should the Disputes proceed in arbitration, batching procedures to reduce the costs and gain efficiencies associated with litigating multiple cases shall be implemented. Twenty-six (26) Disputes shall be selected to proceed to individual arbitration proceedings as part of a first batching process, thirteen (13) of which will be selected by the claimants and their coordinated counsel and thirteen (13) of which will be selected by TaxAct. The remaining Disputes shall not be filed or deemed filed in arbitration nor shall any arbitration provider fees be assessed in connection with those Disputes until they are selected to proceed to individual arbitration proceedings as part of the staged process described herein.
If the parties are unable to resolve the remaining Disputes after the conclusion of the initial twenty-six proceedings, the parties shall participate in a global mediation session before a retired state or federal court judge. If the parties are unable to resolve the remaining Disputes through mediation at this time, then twenty-six (26) Disputes shall be selected to proceed to individual arbitration proceedings as part of a second batching process, thirteen (13) of which will be selected by the claimants and thirteen (13) of which will be selected by TaxAct. (If there are fewer than twenty-six (26) Disputes remaining, all shall proceed.) The remaining Disputes shall not be filed or deemed filed in arbitration nor shall any arbitration provider’s fees be assessed in connection with those Disputes until they are selected to proceed to individual arbitration proceedings as part of the staged process described herein. In any batching process, a single arbitrator shall preside over each proceeding, and only four proceedings may be assigned to each arbitrator unless the parties agree otherwise. If the parties are unable to resolve the remaining Disputes after the conclusion of the second batch of twenty-six (26) proceedings, the parties shall participate in another global mediation session before a retired state or federal court judge. If the parties are unable to resolve the remaining Disputes in mediation at this time, this staged process shall continue with no more than twenty-six (26) Disputes proceeding at any time in a staged order that is selected randomly or by the arbitration provider, until all the Coordinated Disputes, including your Dispute, are adjudicated or otherwise resolved. At any time during these proceedings, we agree to participate in a global mediation session should your counsel request it in an effort to resolve all remaining Disputes.
Any applicable statute of limitations on your Disputes and filing fee deadlines shall be tolled for Coordinated Disputes from the time any Coordinated Dispute is selected for the first set of batching proceedings until the time your Dispute is selected to proceed in arbitration, withdrawn, or otherwise resolved. A court of competent jurisdiction shall have authority to enforce this section regarding Coordinated Disputes and, if necessary, to enjoin the filing or prosecution of arbitration demands against TaxAct. Should a court of competent jurisdiction decline to enforce these Coordinated Dispute procedures, you and we agree that your and our counsel shall engage in good faith and with the assistance of a process arbitrator to devise and implement procedures that ensure that arbitration remains efficient and cost-effective for all parties. Either party may engage with the selected arbitration provider to address reductions in arbitration fees. If this Section regarding Coordinated Disputes is deemed unenforceable as to a particular claimant or batch, then it shall be severed as to that claimant or batch, and those parties shall arbitrate in individual proceedings in accordance with this Section.
Termination of Rights
ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT OR OUR SERVICES OR CONTENT MUST BE FILED WITHIN ONE YEAR AFTER SUCH CLAIM AROSE; OTHERWISE, THE CLAIM IS PERMANENTLY BARRED, WHICH MEANS THAT YOU AND TAXACT WILL NOT HAVE THE RIGHT TO ASSERT THE CLAIM.
You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Section by sending an email to email@example.com. In order to be effective, the opt-out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with the following Section (Jurisdiction and Venue).
14. Jurisdiction and Venue
THE VALIDITY AND PERFORMANCE OF THIS AGREEMENT SHALL BE GOVERNED BY TEXAS LAW (WITHOUT REFERENCE TO CHOICE OF LAW PRINCIPLES), AND APPLICABLE FEDERAL LAW. ANY DISPUTE BETWEEN THE PARTIES THAT IS NOT SUBJECT TO ARBITRATION OR CANNOT BE HEARD IN SMALL CLAIMS COURT WILL BE RESOLVED ON AN INDIVIDUAL BASIS EXCLUSIVELY IN THE STATE OR FEDERAL COURTS OF TEXAS AND THE UNITED STATES, RESPECTIVELY, SITTING IN DALLAS COUNTY, TEXAS.
15. Changes to Terms of Service
We may revise and update this Agreement from time to time in our sole discretion. All changes are effective immediately when we post them, and apply to all access to and use of the Services thereafter. Your continued use of the Services following the posting of the revised Agreement means that you accept and agree to the changes. You should review this page from time to time so you are aware of any changes, as they are binding on you.
16. Privacy Notice
Please refer to http://www.taxact.com/privacy-notice for TaxAct's Privacy Notice.
Please refer to https://www.taxact.com/support/request if you would like to contact us regarding this Agreement or the Services or Content.