PLEASE READ CAREFULLY
Do not install or use any C&S Technologies, Inc. ("C&S") services or products until you have carefully read this User Agreement, which contains the terms and conditions for its use ("Terms"). By installing or using any C&S services or products or providing any information to C&S you indicate that you agree to the Terms contained in this User Agreement and in C&S's Privacy Statement.
Acceptance of Terms
This User Agreement is a legally binding agreement between you, any third party to whom you provide or allow access to eSmartPayroll.com (the "Site") or who otherwise benefits from your use of the Services (as defined below) (collectively sometimes referred to herein as "you" or "your"), and C&S. Access to the tax and form preparation resources, content and software, and if selected by you, electronic filing services provided on this Site (collectively referred to herein as the "Services") is subject to the Terms contained herein. You agree to print a copy of this User Agreement for your files, along with copies of any changes in Terms posted to the Site in the future. If you do not agree to the Terms, do not install or use these Services. C&S may amend the Terms from time to time without notice to you, other than posting the amended Terms to the Site. In addition, use of particular Services may be subject to additional terms and conditions that will be available in connection with such Services. Unless otherwise agreed to in writing between you and C&S, the Terms, as amended, shall govern your use of the Site and all Services.
Registration; Passwords and Security
In order to use any of the Services, C&S requires you to register. In registering, you agree to: (1) provide true, accurate, current and complete information as prompted by the applicable registration form and (2) maintain and promptly update the information. If you provide any information that is untrue, inaccurate, not current or incomplete, or C&S has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, C&S has the right to refuse any and all current or future use of the Services (or any portion thereof).
During the registration process, you will designate a user name and password. You are responsible for maintaining the confidentiality of the user name and password, and are responsible for all activities that occur under your user name and password, whether or not authorized by you. C&S will not be liable for any loss or damage arising from your failure to comply with all Terms contained in this User Agreement.
The software that you download from C&S contains encryption technology that is subject to the United States export laws and regulations. The export or re-export of this software is prohibited except as specifically authorized under the Export Administration Act and its regulations ("EAA"). C&S allows only U.S. citizens or permanent resident aliens to download the software and it is to be used only in the U.S. It is your responsibility to ensure that you comply with the EAA.
C&S ‘s Privacy Statement
Information that you provide to C&S via the Site is subject to our Privacy Statement. For more information, please read our full Privacy Statement at http://www.eSmartPayroll.com/PrivacyStatement.asp. Among other things, by using C&S's Services or products to prepare and submit your tax return, you consent to the disclosure to the Internal Revenue Service and any other tax or revenue authority of all information pertaining to your use of the Services or products.
Rules for and Limitations on Use of the Services
C&S may establish rules for and limitations on use of the Services. C&S reserves the right to change these rules and limitations at any time, in its sole discretion, with or without notice to you. C&S may modify or discontinue, temporarily or permanently, the Services (or any part thereof) and may remove content from the Services, with or without notice to you. C&S will not be liable to you or to any third party for any modification or discontinuance of the Services or removal of content from the Services, including, the late filing of any tax return due to the discontinuation of the Services. You may not reproduce, duplicate, copy, sell, or resell any portion of the Services, use of the Services, or access to the Services. Information provided by C&S is not warranted to be accurate or complete, and will not constitute a warranty or representation by C&S.
C&S has no responsibility or liability for damages or claims relating to your use of the Services on a professional basis or any other use for the benefit of any third party. Nevertheless, if you use the Services on a professional basis or for the benefit of any third party, you agree to print a copy of this User Agreement, along with copies of any changes in Terms posted to the Site in the future, and deliver such copies to all third parties, and obtain their agreement to the Terms in writing. By installing, copying or otherwise using any of the Services for the benefit of any third party, you and each third party agree to be bound by the Terms. If any third party does not agree to the Terms, you agree not to use these Services for the benefit of that third party. C&S may amend the Terms from time to time without notice to you or to any third party other than posting the amended notice to the Site.
If you elect to file your tax return electronically, your tax return will be forwarded to C&S where it will be converted to and stored in a standardized format and, then, transmitted to the applicable federal or state taxing authority. C&S currently expects to make electronic filing services available continuously into the future; provided, however, that C&S may modify or discontinue, temporarily or permanently, such Services (or any part thereof) with or without notice to you. Moreover, the telecommunications delivery systems used for C&S's electronic filing services can be unpredictable in their performance, may negatively impact access to C&S's electronic filing service or other Services, and C&S does not guarantee such performance. C&S cannot guarantee that the taxing authority will accept your return. You are responsible for verifying the status of your return to confirm that it has been received and accepted by the applicable federal or state taxing authority.
You agree and acknowledge that you are responsible for filing your tax return as early as possible to meet any filing deadlines. You also agree to review your tax return, once prepared, for indications of obvious errors prior to electronically filing or printing your return. You are responsible for acquiring and maintaining all equipment, computers, software and communications services relating to the access of the Site and use of the Services, and for all expenses relating thereto.
The payment of all applicable fees and charges to C&S must be made as provided on the Site and, except as otherwise provided herein, all fees and charges are non-refundable. You should confirm that the fees for your use of the Services have not changed between the time you first used the Services to prepare your tax return and the time you have completed and are ready to file your tax return.
Certain areas of the Site may allow users to upload and post content (collectively, "User Content"). You understand and expressly agree that C&S assumes no responsibility or liability for any User Content and that you are solely and entirely responsible for any User Content you provide on the Site. By uploading and posting User Content on the Site, you warrant that: (1) you are the owner of such User Content or have been granted by the owner all the rights necessary to submit such User Content to C&S; and (2) such User Content will not infringe the intellectual property rights of or otherwise violate the rights of any third party. C&S does not control the User Content you post and as such assumes no responsibility for the accuracy, integrity or quality of such User Content. C&S reserves the right to remove any User Content on the Site at any time and for any reason. C&S is not responsible if the User Content you post contains errors or omissions; is offensive, objectionable, defamatory or otherwise violates any intellectual property right or any other proprietary right of a third party; or for loss or damage of any kind incurred as a result of such User Content.
C&S's Proprietary Rights, Limited Licenses, Trademarks and Trade Secrets
You acknowledge and agree that the Services and any content used in connection with the Services, including any software accessible through the Site, contain C&S proprietary and confidential information that is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. "eSmartPayroll" or "eSmart Payroll" and all other C&S product and services names and design logos are trademarks and/or service marks of C&S (the "C&S Marks"). As between you and C&S, C&S shall own all right, title and interest in and to the Services, subject only to the express licenses granted herein. Subject to the Terms, C&S grants you a non-transferable and non-exclusive right and license to use one copy of the Services only on a single computer or terminal. You may make a single backup copy of the software for your own archives. You are not permitted to (and may not allow any third party to) copy, modify, adapt, translate, lease, ret, loan, establish a hyperlink to, frame within any website, distribute, create a derivative work of, reverse engineer, disassemble, decompile, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Services. You agree not to modify the software in any manner or form, or to use modified versions of the software, including (without limitation) for the purpose of obtaining unauthorized access to the Services. Without C&S's prior permission, you agree not to display or use the C&S Marks in any manner. C&S reserves all patent, copyright, trade secret, trade name, trademark, license and other proprietary rights related to its software, services and products and you shall not infringe upon or violate such rights.
The license provided herein shall automatically terminate on the date C&S decides to remove or terminate the Services. In addition, your license shall terminate immediately if you breach any of the Terms and C&S is entitled to enforce its rights under this User Agreement by an action for damages or by specific performance, injunctive or other equitable relief. Upon such termination of your license, you must immediately uninstall the C&S software from your computer, return it to C&S and destroy all backup copies. This User Agreement does not limit any rights that C&S may have under trade secret, copyright, patent or other laws.
C&S, in its sole discretion, may terminate your use of the Services for any reason without prior notice to you. You acknowledge and agree that C&S may immediately deactivate or delete your user account and all related information and files in your user account and/or bar your further access to the Services. C&S will not be liable to you or any third party for any termination of your access to the Site and/or use of the Services.
Dealings with C&S's Affiliates
Your dealings with other entities promoted on or through the Services, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such other entity. You agree that C&S shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the promotion of such other entities on the Services.
The Services may provide links to other World Wide Web sites or resources. C&S has no control over or responsibility for such sites and resources. You agree that C&S is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, terms and conditions, or other materials on or available from such sites or resources. However, we encourage you to read any applicable terms and conditions or privacy policies at such sites. C&S provides these links to you only as a convenience.
If you are not satisfied with the Services, your exclusive remedy shall be to immediately stop using the Services, and within 10 days of purchase return it to C&S at 1879 Lundy Ave. #266, San Jose, CA 95131 along with a letter requesting a full refund of any fees paid by you for using the Services, and identifying your name, address, date of purchase and contact information.
C&S warrants the accuracy of the calculations its Services perform on every form properly prepared using the Services. If you pay a penalty to the IRS as a result of a calculation error on a form prepared using the Services, C&S will reimburse you the amount of such penalty (but not interest or any other additional tax liability you may owe) within 90 days after you pay the penalty to the IRS, subject to the following additional conditions: (1) the penalty is assessed against you and is caused solely by a calculation error on a form prepared using the Services, and not from a willful or fraudulent omission or inclusion of information on your tax return, a failure to timely file your tax return or submit a required form, an incorrect entry of information on your tax return, your failure to file an amended return to avoid or reduce any penalty after C&S provided notice to you, either via a posting at its Site or some other mechanism, or updates or corrections to its software or Services in time for you to file an amended return, or any other reason, (2) you prepared your tax return in accordance with the instructions for the Services, (3) you complied with all Terms contained in this User Agreement, (4) the total amount reimbursed to you shall in no event exceed $1,000.00, and (5) you notified C&S at 2050 Ringwood Avenue, San Jose, CA 95131 as soon as you learned of the error (but in no event later than 30 days after the penalty is assessed). Your notice to C&S must be in writing and include a copy of all correspondence to and from the IRS, a copy of your tax return and proof of payment to the IRS for the penalty. You agree to provide all other information reasonably requested by C&S in connection with your claim for reimbursement. You are responsible for paying any additional tax liability or interest you may owe.
Disclaimer of Warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. C&S EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY WARRANTIES OF TITLE, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT AND ANY WARRANTY FOR INFORMATION, DATA, SERVICES, UNINTERRUPTED ACCESS OR PRODUCTS PROVIDED TO OR IN CONNECTION WITH THE SERVICES.
C&S MAKES NO WARRANTY THAT (1) THE SERVICES WILL MEET YOUR EXPECTATIONS, (2) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE (3) ANY ERRORS IN THE SERVICES WILL BE CORRECTED, OR (4) THAT THE SERVICES OR SOFTWARE ARE SECURE, FREE FROM BUGS, VIRUSES, ERRORS OR OTHER PROGRAM LIMITATIONS.
SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY IN WHOLE OR IN PART TO YOU. IN THAT EVENT, EXCEPT AS PROHIBITED BY LAW, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO 60 DAYS FROM THE DATE OF PURCHASE OF THE SERVICES.
TAX LAWS AND REGULATIONS CHANGE FREQUENTLY. YOU ARE RESPONSIBLE FOR AND AGREE TO REVIEW YOUR TAX RETURN FOR INDICATIONS OF ERRORS PRIOR TO ELECTRONICALLY FILING IT OR MAILING IT AND FOR CONSULTING WITH YOUR TAX ADVISORS REGARDING APPLICABLE LAWS AND REGULATIONS. C&S DISCLAIMS ANY RESPONSIBILITY FOR THE ACCURACY OR ADEQUACY OF ANY TAX POSITIONS TAKEN BY YOU IN YOUR TAX RETURN.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
ALL WARRANTIES AND GUARANTEES GIVEN OR MADE BY C&S 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 OF THIS USER AGREEMENT.
THIS DISCLAIMER OF WARRANTIES AND LIABILITIES APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OR PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELECTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF OR USE OF RECORD OR SERVICES, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE OR UNDER ANY OTHER CAUSE OF ACTION.
You agree to indemnify, defend and hold harmless C&S, its affiliates, officers, directors, employees, consultants and agents from any and all claims, liability, damages and/or costs (including without limitation attorneys' fees and legal costs) arising out of or related to any User Content that you upload or post to the Site, including, but not limited to, any third party claim that the User Content (or any part thereof) you uploaded or posted infringes any copyright, trademark, tradename or patent rights of a third party, defames or invades any right of publicity or privacy, or otherwise infringes any other proprietary right; or otherwise arising out of or related to your use of the Services or your violation of the Terms.
Limitation of Liability
EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, YOU AGREE THAT THE MAXIMUM LIABILITY OF C&S SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR USE OF THE SERVICES. YOU AGREE THAT C&S SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF C&S HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (1) THE USE OR THE INABILITY TO USE THE SERVICES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM THE SERVICES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR ACCOUNT BY ANYONE OTHER THAN C&S; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; OR (5) ANY OTHER MATTER RELATING TO THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, THEREFORE, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
THE LIMITATIONS OF DAMAGES AND LIABILITY PROVIDED HEREIN ARE MATERIAL ELEMENTS OF THIS USER AGREEMENT. YOU ACKNOWLEDGE AND AGREE THAT C&S WOULD NOT BE ABLE TO PROVIDE THE SERVICES ON AN ECONOMIC BASIS WITHOUT SUCH LIMITATIONS.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT, C&S HAS NO RESPONSIBILITY OR LIABILITY FOR DAMAGES OR CLAIMS RELATING TO ANY USE OF C&S's SOFTWARE, PRODUCTS OR SERVICES ON A PROFESSIONAL BASIS, AND YOU AGREE TO INDEMNIFY C&S AGAINST ANY CLAIMS RELATING TO SUCH USE. YOU ALSO AGREE NOT TO HOLD OR TRY TO HOLD C&S LIABLE FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF YOUR PARTICIPATION IN THIRD PARTY SERVICES OR PROVISION OF SERVICES TO ANY THIRD PARTY.
Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable content. Without limiting the generality of the foregoing, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside. You agree not to use the Services unless you are either a citizen of the Unites States or currently reside in the United States.
Notices to you may be made via either email or regular mail. The Services may also provide notices of changes to the Terms or other matters by displaying notices or links to notices to you on the Services. You are responsible for keeping C&S apprised promptly of any change in your email address, mailing address and/or phone number so that you can be provided with any notices that C&S wishes to send to you.
Except to the extent required by applicable law, C&S has no obligation to store, maintain or provide to you any information that you provide to C&S. You agree to print and save a copy of your information for your records. Upon your written request within one year after your payment for use of the Services, C&S may, in its sole discretion make reasonable efforts to provide you with a copy of your tax return, if such tax return was electronically filed and retained by C&S; provided, however, that C&S does not represent or warrant that such copy will be available, and C&S may choose to impose a reasonable charge for obtaining and providing you with such a copy of your tax return.
The Terms and C&S's Privacy Statement constitute the entire agreement between you and C&S and govern your use of the Services, superceding any prior agreements between you and C&S. You also may be subject to additional terms and conditions that are applicable to certain Services. The failure of C&S to exercise or enforce any right or provision of the Terms or this User Agreement shall not constitute a waiver of such right or provision. If any provision of the Terms or the User Agreement is found by a court of competent jurisdiction to be invalid, the parties agree that the arbitrator should give effect to the parties' intentions as reflected in the provision, and all other provisions will remain in full force and effect. You may not assign the Terms or any of your rights or obligations under the Terms without C&S's express written consent. The Terms inure to the benefit of C&S's successors, assigns and licensees. The section titles in the Terms are for convenience only and have no legal or contractual effect.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Services or the terms and conditions contained in this User Agreement must be filed within one year after such claim or cause of action arose or the claim or cause of action shall be forever barred.
Choice of Law and Arbitration
This User Agreement will be governed by and construed in accordance with the laws of the State of California, excluding its conflict of laws principles. Each party agrees to submit any and all disputes concerning this User Agreement, if not resolved between the parties, to binding arbitration under a neutral, independent and impartial arbitrator in accordance with the Commercial Rules of the American Arbitration Association ("AAA"); provided, however, the arbitrator may not vary, modify or disregard any of the provisions contained in this section. The decision and any award resulting from such arbitration shall be final and binding. The place of arbitration will be at C&S's offices. The arbitrator is not empowered to award damages in excess of compensatory damages and you irrevocably waive any right to recover such damages with respect to any dispute resolved by arbitration. The fees of the arbitrator will be borne equally by you and C&S. The language of arbitration will be English; provided, however, that an interpreter may be provided for any witness who requires an interpreter. The costs of such interpretation will be borne by the party requesting the interpreter. Any final decision or award from arbitration under this section will be in writing and reasoned. Each party will bear their own costs and expenses that are reasonable and necessary for participating in arbitration under this section. As part of any arbitration conducted under this section, each party may: (1) request from the other party documents and other materials relevant to the dispute and likely to bear on the issues in such dispute, (2) conduct no more than three oral depositions, each of which will be limited to a maximum of seven hours in testimony, and (3) propound to the other party no more than 30 written interrogatories, answers to which the other party will give under oath. All the dispute resolution proceedings contemplated in this section will be as confidential and private as permitted by law. The parties will not disclose the existence, content or results of any proceedings conducted in accordance with this section, and materials submitted in connection with such proceedings will not be admissible in any other proceeding; provided, however, that this confidentiality provision will not prevent a petition to vacate or enforce an arbitration award, and shall not bar disclosures required by law. The parties agree that any decision or award resulting from proceedings in accordance with this section shall have no preclusive effect in any other matter involving third parties. All applicable statutes of limitation and defenses based upon the passage of time will be tolled while the procedures specified in this section are pending. The parties will take such action, if any, required to effectuate such tolling. The arbitration shall be governed by the United States Arbitration Act and any court having jurisdiction may enter judgement upon the award rendered by the arbitrator.
Changes to the User Agreement
As C&S's business changes from time to time, this User Agreement is expected to change. C&S reserves the right to amend the User Agreement at any time, for any reason, without notice to you, other than the posting of the amended User Agreement at this Site. C&S may email periodic reminders of its notices and Terms, but you should check the Site frequently to see the current User Agreement in effect and any changes that may have been made to it. Your installation or use of C&S's products or Services is subject to the User Agreement and Privacy Statement in effect at the most recent time of use. The provisions contained herein supersede all previous notices or statements regarding the Terms or use of C&S's products and Service.