Terms of Service

Legal Terms of Service

Date of Last Revision: November 27, 2017

READ THESE TERMS CAREFULLY BEFORE USING THIS WEBSITE. This agreement (“Agreement”, or “Terms of Service”) is entered into by and between ScaleFactor, Inc. (“ScaleFactor,” “we” or “us”), and you and your affiliated business entities (“Customer” or “you”). “Affiliate” means any company that controls, is controlled by, or is under common control with Customer, directly or indirectly, with control meaning an ownership interest of at least 20%. The parties are each independent contractors with respect to the other, and neither party is authorized to act for the other as an agent, representative, or partner.

This Agreement states the terms and conditions that govern your access to and use of the Scalefactor Website, and web-based software services, managed services, functionality, and content, collectively, the “ScaleFactor Service”, a detailed description of which is available in the “Description of Products & Services” available at www.scalefactor.com/terms-of-service. This Agreement contemplates one or more valid orders for the ScaleFactor Service, which are governed by this Terms of Service, and collectively constitute the Agreement. If there is an inconsistency between this Terms of Service and an order, the order prevails.

This Terms of Service and valid orders constitute the entire Agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written.  Customer is not relying on any representations, oral or written, not included in this Agreement. No representation, promise, or inducement not included in this Agreement is binding.

Acceptance and Modification of Terms of Service

By ordering, accessing, or using the ScaleFactor Service, you irrevocably agree to be bound by this Agreement, all other policies, procedures, and rules that we may publish, and any additional terms and conditions which we and you may agree to in writing on a valid order form. We may refuse to offer the ScaleFactor Service to any entity, and use of the ScaleFactor Service is not authorized in any jurisdiction that does not give effect to all provisions of the Terms of Service. If you do not agree with the Terms of Service, or you are not legally able to enter into a contract, you are not authorized to use the ScaleFactor Service. We reserve the right to modify or replace any provision in the Agreement, or change, suspend, or discontinue the ScaleFactor Service at any time. It is your responsibility to check the Terms of Service periodically for changes, and your continued use of the ScaleFactor Service following any changes to the Terms of Service constitutes acceptance of those changes to the Agreement. If any term of this Agreement is invalid or unenforceable, the other terms remain in effect. Except for the payment of monies, neither party is liable for events beyond its reasonable control, including, without limitation force majeure events.

Data Security & Privacy

ScaleFactor stores data in an SSL encrypted cloud that is hardened against unauthorized penetration using modern information security methods, infrastructure, and facilities that are fully compliant with SSAE 16 standards.

Our privacy policy is at https://portal.scalefactor.com/pages/privacy-policy (“Privacy Policy”) and is incorporated herein by reference.

You are responsible for maintaining the confidentiality of your log-in credentials to the ScaleFactor Service, and will immediately notify us of any suspected unauthorized use of your account, or other account related security breach. You will not use another user’s log-in credentials without the other user’s express permission.

The ScaleFactor Service may link to other websites, and other websites may link to the ScaleFactor Service. Third party sites and services are not under our control, and you agree that ScaleFactor shall not be responsible or liable, directly or indirectly, for any damage or loss in connection with the use of or reliance on any such content, products, or services available from any such third party.

You agree to provide ScaleFactor with remote access, when necessary, to your accounting and bank feed systems, as may be required by the ScaleFactor Service. You are solely responsible for the adequacy of its security measures for remote access users. You represent and warrant that your use of the ScaleFactor Service will not violate any agreement or terms to which you are subject.

Use of the ScaleFactor Service

Customer and its authorized employees, affiliates, and contractors may access the ScaleFactor Service in compliance with the Agreement and applicable law.

You may not (i) sell, resell, rent, or lease the Scalefactor Service or use it in a service provider capacity; (ii) use the ScaleFactor Service to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise objectionable, unlawful or tortious material, or to store or transmit material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the ScaleFactor Service; (iv) attempt to gain unauthorized access to the ScaleFactor Service or their related systems or networks; (v) reverse engineer the ScaleFactor Service; or (vi) access the ScaleFactor Service to copy any feature, function, or graphic for competitive or benchmarking purposes.   

All data you provide (Customer Data) and all results derived by the ScaleFactor Services from the Customer Data (Results), remain your property. We will use Customer Data solely for purposes of performing under this Agreement. During the term of this Agreement, you may export your Customer Data and Results through the use of the ScaleFactor Service.

During and after the term of this Agreement, ScaleFactor may use and owns all anonymized Customer Data and Results within the ScaleFactor Service for purposes of enhancing the products & services, aggregated statistical analysis, technical support, and other business purposes.

Payment of Fees

You must pay all fees as specified on the order, but if not specified then payment is due on the 1st of the proceeding month following the invoice date, payable via credit card, ACH, or other acceptable means. You are responsible for the payment of all sales, use, withholding, VAT, and other similar taxes. If you believe in good faith that any invoice is incorrect and wish to dispute any invoice, you must notify us within 10 days of your receipt of the invoice. We reserve the right to charge interest on any undisputed invoice that is not paid within 30 days of the invoice date. ScaleFactor reserves the right to suspend your access to any ScaleFactor Services if you fail to pay any undisputed invoice when due, until your account is paid in full or you have made other payment arrangements satisfactory to us. Our suspension of services will not affect your obligations to us under this Agreement. If any collection action is required to collect unpaid balances due, the you shall reimburse ScaleFactor for collection costs, including attorneys’ fees.

Mutual Confidentiality

Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. ScaleFactor’s Confidential Information includes without limitation the ScaleFactor Service, its user interface design and layout, operating policies & procedures, and pricing information.

The Recipient will not disclose or use any Confidential Information of Discloser for any purpose outside of the scope of this Agreement, and must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.

Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser, (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser, (iii) is received from a third party without breach of any obligation owed to Discloser, or (iv) was independently developed by the Recipient without use or access to the Confidential Information.  The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.

ScaleFactor Property

The software, workflow processes, procedures, user interface, designs, and other technologies provided as part of the ScaleFactor Service are proprietary property of ScaleFactor and its licensors, and all right, title, and interest in and to such items, including all associated intellectual property rights, remain only with ScaleFactor. Customer may not remove or modify any proprietary marking or restrictive legends in the ScaleFactor Service. Any feedback or suggestions you provide us about the ScaleFactor Service is owned by ScaleFactor, and we may use such information without obligation to you. ScaleFactor reserves all rights unless expressly granted in this Agreement.

Term, Termination, Suspension

This Agreement continues until all valid orders have expired, or if either party is in material breach of this Agreement, in which case the other party may terminate this Agreement at the end of a written 30-day notice/cure period, if the breach has not been cured.

Within 60-days after termination, upon request, we will make the ScaleFactor Service available for Customer to export Customer Data, after such 60-day period, ScaleFactor has no obligation to maintain the Customer Data.

ScaleFactor may temporarily suspend or revoke the ScaleFactor Service at any time, if we in good faith believe that you violated a law, or that a conflict of interest exists that prevents us from providing the ScaleFactor Service in accordance with applicable ethical rules.

Any terms that by their nature survive termination of this Agreement for a party to assert its rights and receive the protections of this Agreement, will survive (including without limitation, the confidentiality terms).

Warranty Disclaimer

ScaleFactor represents and warrants that all professional services performed under this Agreement shall be performed in a workmanlike and professional manner. SCALEFACTOR DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. WHILE SCALEFACTOR TAKES REASONABLE PHYSICAL, TECHNICAL, AND ADMINISTRATIVE MEASURES TO SECURE THE SCALEFACTOR SERVICE, SCALEFACTOR DOES NOT GUARANTEE THAT THE SCALEFACTOR SERVICE CANNOT BE COMPROMISED. CUSTOMER UNDERSTANDS THAT THE SCALEFACTOR SERVICE MAY NOT BE ERROR FREE, AND USE MAY BE INTERRUPTED.

Liability Limit

SCALEFACTOR IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, COSTS OF DELAY; LOSS OF OR UNAUTHORIZED ACCESS TO DATA OR INFORMATION; AND LOST PROFITS, REVENUE, OR ANTICIPATED COST SAVINGS), EVEN IF IT KNOWS OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS OR IF THE DAMAGE OR LOSS IS FORESEEABLE.

EXCEPT FOR SCALEFACTOR’S INDEMNITY OBLIGATIONS, SCALEFACTOR’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT, OR OTHERWISE) DOES NOT EXCEED THE AMOUNT PAID BY CUSTOMER WITHIN THE 12 MONTH PERIOD PRIOR TO THE EVENT THAT GAVE RISE TO THE LIABILITY.

 

Indemnity
ScaleFactor will defend or settle any third party claim against Customer to the extent that such claim alleges that ScaleFactor technology used to provide the Scalefactor Service violates a copyright, patent, trademark, or other intellectual property right, if Customer, promptly notifies ScaleFactor of the claim in writing, cooperates with ScaleFactor in the defense, and allows ScaleFactor to solely control the defense or settlement of the claim.  ScaleFactor will pay infringement claim defense costs it incurs in defending Customer, and ScaleFactor negotiated settlement amounts, and court awarded damages. If such a claim appears likely, then ScaleFactor may modify the ScaleFactor Service, or procure the necessary rights, or replace it with the functional equivalent, or terminate the functionality and refund any prepaid and unused fees. ScaleFactor has no obligation for any claim arising from: ScaleFactor’s compliance with Customer’s specifications; a combination of the ScaleFactor Service with other technology or aspects where the infringement would not occur but for the combination; use of Customer Data; or technology or aspects not provided by ScaleFactor. THIS PARAGRAPH CONTAINS CUSTOMER’S EXCLUSIVE REMEDIES AND SCALEFACTOR’S SOLE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.

You hereby irrevocably agree to indemnify, defend, and hold ScaleFactor, its affiliates, directors, officers, employees, and agents harmless from and against any and all loss, costs, damages, liabilities, and expenses (including attorneys’ fees) arising out of or related to (i) any third party claim resulting from a breach by you of any of your covenants, representations, or warranties contained in this Agreement and/or (ii) your use of the ScaleFactor Service.

Governing Law and Venue

This Agreement is governed by the laws of the State of Texas (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this Agreement.  Any suit or legal proceeding must be exclusively brought in the federal or state courts for Travis County, Texas, and Customer submits to this personal jurisdiction and venue.  Nothing in this Agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorney’s’ fees and costs from the other party.

Assignment

Neither party may assign or transfer this agreement or an order to a third party, except that this agreement with all orders may be assigned, without the consent of the other party, as part of a merger, or sale of substantially all the assets of a party. Notwithstanding the foregoing, we may use subcontractors to perform services, in our sole discretion and without notice; provided that the use of any such subcontractors shall not affect our obligations or responsibilities to you.

 

Tax and 1099 Services Terms & Conditions

These Tax and 1099 Terms and Conditions (the “Terms”) are pursuant to and in accordance with the “Terms of Service” at www.scalefactor.com/contracts. Except as specifically set forth in these Terms, the terms and conditions of the Agreement shall apply fully to the provision of the Selected Services for tax or 1099 services. If there is any conflict between the terms of the Agreement and these Terms, however, the Terms & Conditions shall apply.

In the course of delivering services relating to tax return preparation, tax advisory, assistance in tax controversy matters and 1099 matters, ScaleFactor applies customary practices intended to provide these services in a cost-effective manner. The Terms describe certain of these customary practices, as well as other standard terms, conditions, and limitations relating to our provision of tax and 1099 services. Except to the extent we expressly agree in a written instrument signed by our authorized representative that specifically refers to the engagement covered by the Agreement and these Terms, all Selected Services that we provide to you relating to tax return preparation, tax consultation and advice, representation in any tax controversy matter, any 1099 matter or any other federal, state, local, or foreign tax matter, are subject to the Agreement and these Terms. References to the “Code” mean the Internal Revenue Code of 1986, as amended.

1. Terms Regarding Tax Return Preparation

  1. Scope of Return Preparation Services. Our services in preparing your tax returns are limited to tax return preparation, and our preparation of a return should not be viewed as assurance that any particular reported position is correct. If we become aware of a return position for which we believe a penalty under the Code is likely to apply, we will bring that position to your attention. If you would like us to advise you concerning any specific matter on your tax return, please contact us to discuss expanding the scope of our services. Any Tax Advice rendered in connection with the preparation of any tax return is subject to the provisions described under Section 2 “Terms Regarding Tax Advice” below.We will prepare the tax returns and other tax related filings and documents and schedules as agreed in writing with you. It is your responsibility to carefully examine and approve the completed tax returns before signing and mailing them to the tax authorities.
  2. Reliance on Information. We will rely on the financial statements or other financial information that you provide. We will not investigate or verify any facts underlying the transactions reported on your tax return. If the actual facts differ from the facts represented to or understood by us, or if there are related facts of which we are not aware, the reporting of the transactions could be materially different than that reported on the returns prepared by us.
  3. Our and Your Respective Responsibility for Accuracy. We will exercise due professional care and judgment to include all required information in your tax returns. The Code provides that by signing your returns, you are verifying that they are true, correct and complete. Accordingly, you should review each tax return carefully before signing it, and bring any questionable items or omissions to our attention.
  4. Jurisdictions for Returns. We will prepare tax returns for those federal, state, and local jurisdictions requested by you in writing. We will advise you if we believe, based on the information that you provide us, that a tax return should be filed in any other jurisdiction, but we will not prepare any such tax return without your approval of the expansion of our scope of services.
  5. Level of Assurance and Return Disclosures. The Code prohibits tax preparers from signing any tax return known to report any position (i) that is not supported by “substantial authority” unless certain disclosures are made concerning the position or (ii) attributable to certain “tax shelters” that the preparer does not reasonably believe is more likely than not correct. Because of the limited scope of analysis in evaluating a reporting position, a conclusion that disclosure is not required to enable us to sign a return may not be sufficient to avoid the application of tax penalties under the Code. Except as expressly agreed separately in writing, we will not review any reporting position or perform any tax research for the purpose of either (i) determining whether a position can be reported without disclosure or (ii) determining whether tax penalties may apply. If you wish to report a position without disclosure on the return, or if you are concerned about the potential application of tax penalties, please contact us to discuss expanding the scope of our services to include rendering Tax Advice intended to address your concerns.
  6. Disclosure of Reportable Transactions. The Code and certain state laws require that you disclose on your tax return certain “reportable transactions” or “listed transactions.” There are significant financial penalties for failure to disclose these transactions, and these penalties may apply even if the transaction does not lead to an understatement of tax. Our tax return preparation services do not include any investigation to evaluate whether there are any reportable transactions that are required to be disclosed on your returns, but we will advise you if we conclude that any such disclosure is required. If you would like us to specifically review any potentially “reportable transaction” or “listed transaction,” please contact us to discuss expanding the scope of our services.
  7. Unclear Tax Laws or Conflicting Interpretations. There may be instances where the tax law is unclear, or where there may be conflicts between the taxing authorities’ interpretations of the law and other supportable positions. In those instances, we will outline each of the reasonable alternative courses of action, including the risks and consequences of each such alternative. In the end, we will adopt, on your behalf, the alternative you select after having considered the information provided by us.
  8. Reasonable Beliefs. Without disclosure in the return itself of the specific position taken on a given issue, we must have a reasonable belief that the position(s) satisfies the substantial authority standard and that the position will be held to be the correct position upon examination by taxing authorities. If we do not have that reasonable belief, it must be satisfied that there is at least a reasonable basis for the position, and in such a case the position must be formally disclosed on Form 8275 or 8275-R, which form would be filed as part of the return. If we do not believe there is a reasonable basis for the position, either the position cannot be taken or the return will not be signed.
  9. Penalties and Interest. The law provides various penalties and interest that may be imposed when taxpayers underestimate their tax liability. You acknowledge and agree that any such understated tax, and any imposed interest and penalties, are your sole responsibility.
  10. Foreign Accounts. Note that any person or entity subject to the jurisdiction of the United States (includes individuals, corporations, partnerships, trusts, and estates) having a financial interest in, or signature or other authority over, bank accounts, securities, or other financial accounts having a value exceeding $10,000 in a foreign country, shall report such a relationship. Although there are some limited exceptions, filing requirements also apply to taxpayers that have direct or indirect control over a foreign or domestic entity with foreign financial accounts, even if the taxpayer does not have foreign account(s). For example, a corporate-owned foreign account would require filings by the corporation and by the individual corporate officers with signature authority. Failure to disclose the required information to the U.S. Department of the Treasury may result in substantial civil and/or criminal penalties.If you have a financial interest in any foreign accounts, you are responsible for providing us with all the information necessary to prepare Form TD-F-90-22.1 required by the U.S. Department of the Treasury on or before June 30th of each tax year. If you do not provide us with information regarding any interest in a foreign account, we will not be able to prepare any of the required disclosure statements.
  11. Review. Your returns may be selected for review by one or more taxing authorities. Any proposed adjustments by the examining agent are subject to certain rights of appeal. In the event of such government tax examination, ScaleFactor will be available upon Customer’s written request to represent Customer during the examination and/or during any appeal. Any such representation will be the subject of, and governed by, the Agreement and any additional terms and conditions as agreed in writing between the parties.
  12. Substantiation. ScaleFactor relies on the Customer for compliance with all Internal Revenue Service substantiation requirements. ScaleFactor shall not be responsible for the disallowance of doubtful deductions or inadequately supported deductions, nor any resulting additional tax, penalties and interest. In the event ScaleFactor or the Customer are assessed additional tax, penalties and interest due to ScaleFactor’s reliance on inaccurate, incomplete or misleading information provided to ScaleFactor (with or without the Customer’s knowledge or intent). The Customer will indemnify and defend ScaleFactor and hold ScaleFactor harmless as to any additional tax, penalties and interest.

2. Terms Regarding Tax Advice

  1. Limitations on Oral, Messaging and Email Communication.We may discuss with you our views regarding the tax treatment of certain items. We may also provide you with tax information in the body of an email. Any advice or information delivered orally or in the body of an email (as opposed to a memorandum delivered as an email attachment) will be based upon limited tax research and limited discussion and analysis of the underlying facts. Additional research or more complete review of the facts could affect our analysis and conclusions. Because of these limitations and the related risks, it may not be appropriate to proceed with any transaction or any tax return reporting position solely on the basis of any oral, messaging or email communication. You accept all responsibility for any loss, cost, or expenses resulting from your decision (i) not to have us perform the research and analysis necessary to reach a more definitive conclusion and (ii) to instead rely on an oral or email communication. The limitation in this Section 2.1 will not apply to an item of written Tax Advice that is delivered to you as a document attached to an email.
  2. Facts and Assumptions. Our investigation to confirm or verify any facts described in any letter, memorandum, or opinion addressing the application of tax laws to a particular situation (“Tax Advice”) will be limited to the investigation described in the body of the Tax Advice, and we will rely on the assumptions and representations described in the Tax Advice. Any change in or addition to these facts, assumptions, or representations could materially and adversely affect our analysis and conclusions. If you for any reason believe that any facts, assumptions, or representations in any Tax Advice are incorrect or incomplete, you must notify us immediately to discuss the impact on our analysis and conclusions. You should not rely upon any item of Tax Advice that is based on facts, assumptions, or representations that you believe to be incorrect or incomplete.
  3. Applicable Law. Unless expressly stated in our Tax Advice, our analysis and conclusions will relate solely to federal income tax consequences under the Code as of the date of our Tax Advice. If you would like us to address tax consequences to you under any other applicable tax law, please contact us to discuss expanding the scope of our services.
  4. Issues Addressed. Each item of Tax Advice will be limited to advice concerning the tax issues described in the Tax Advice, and it may not consider all of the issues that may arise in connection with the transaction. Except as expressly stated in an item of Tax Advice, our advice is not an endorsement of any particular transaction structure, nor is it a recommendation that any addressee proceed with the transaction structure described in the Tax Advice.
  5. Reportable Transactions. As noted earlier, the Code and certain state laws require that you disclose on your tax return certain “reportable transactions” or “listed transactions.” We will not review any transaction to determine whether it is a “reportable transaction” or a “listed transaction” except as expressly provided in the Tax Advice. If you would like us to review any transaction to determine whether it is a “reportable transaction” or “listed transaction,” please contact us to discuss expanding the scope of our services.
  6. Level of Assurance for Tax Advice; No Guarantee. Many areas of tax law are unclear, and the application of the tax law to any particular facts may be subject to more than one interpretation. Our Tax Advice will be based upon our interpretation of applicable law and regulations, and certain case and ruling authority as of the date of the Tax Advice. The level of assurance for any particular item of Tax Advice will depend on the underlying facts, the clarity of applicable law, regulations, rulings, and court cases, and the extent of factual due diligence and tax research performed. The conclusions in our Tax Advice will be based on our good faith belief that they meet the level of assurance stated in the Tax Advice. Obtaining Tax Advice at a particular level of assurance may in some cases provide a defense to certain tax penalties, but you should not assume that an item of Tax Advice will offer you protection from penalties except as expressly stated in the Tax Advice. Our analysis and conclusions will be based upon our professional judgment, will not be a guarantee of the ultimate tax consequences of the transactions described in the Tax Advice, and will not be binding on the IRS or any tax authority, or any court. If you would like greater certainty regarding the tax treatment of any particular transaction, please contact us to discuss the possibility of obtaining a ruling from the appropriate tax authority.
  7. Reliance and Distribution. Each item of Tax Advice is rendered only for the benefit of the named addressee(s), and does not address the tax consequences to any other person or entity that is not an addressee. No person or entity other than the named addressee(s) may rely on the Tax Advice. To avoid confusion regarding matters of reliance, our Tax Advice may not be delivered to any other party unless you advise the recipient of these limitations on reliance. Unless expressly provided in an item of Tax Advice, but subject to the limitation in the preceding sentence, you are free to share the Tax Advice with any third party. You may deliver a copy of any Tax Advice to the IRS or any tax authority for the purpose of demonstrating good faith and reliance on the analysis and conclusions expressed therein. You should be aware that the delivery of any item of Tax Advice to a third party may act as a waiver of any otherwise available claim of privilege. Before delivering an item of Tax Advice to a third party, we recommend that you consult with legal counsel to assess the matters relating to claims of privilege.

3. Terms Applicable to All Tax and 1099 Services

  1. Scope of Services. Our services will be limited to the Selected Services and other services specifically agreed to in writing by us. Services in providing Tax Advice or in preparing a tax return do not include representation in the event of an examination by the IRS or other tax authorities. If you need tax services beyond those specifically described in this Engagement Letter, these additional services would constitute either a separate engagement or an expansion of an existing engagement at an additional cost. Our agreement to provide services for one engagement does not obligate us to accept any other engagement.
  2. Your Responsibilities. In order for us to provide effective services, you must cooperate with us and provide us with any information that we request, all on a timely basis. You must cause your employees and contractors to cooperate fully and timely with us. You must designate for us a person authorized to make or obtain all management decisions with respect to our services on a timely basis. We will rely in good faith on all information and management decisions communicated to us by you, your employees, or your contractors, and we will not be responsible for any loss or other obligation arising from our reliance. Any failure to fulfill your responsibilities will be grounds for our suspending or terminating the applicable Selected Services or other services or the Agreement.
  3. Decisions. While we will provide you with advice concerning tax return reporting and the tax consequences of certain transactions, you will retain all authority and responsibility for any decisions based on our advice.
  4. Independent Contractor. For all tax services that we perform, we will be an independent contractor and not your employee, agent, or partner, and we will determine the method, details and means of performing our services. We assume full and sole responsibility for the payment of all compensation and expenses of our employees and for all of their applicable employee withholdings.
  5. Confidentiality. We will maintain the confidentiality of your Confidential Information in accordance with Section 10 of the Agreement.
  6. Engagement of Other Parties. In performing any tax services, we may engage the services of seasonal preparers, independent contractors, or other third party personnel. By engaging us, you have authorized us to allow employees, partners and subcontractors of ScaleFactor, Inc. and such other third parties access to your files, financial information and other confidential information. Our engagement of any third party does not affect our obligations to you.
  7. Changes in Law. Subsequent changes to applicable law or regulations, or the issuance of new case or ruling authority, could materially and adversely affect the analysis and conclusions in an item of Tax Advice or a position reported on a tax return. Neither the delivery of any Tax Advice nor the preparation of a tax return is an undertaking on our part to advise you of any changes in law.
  8. Possibility of Litigation. If the IRS or another tax authority adopts a position contrary to any analysis or conclusions in our Tax Advice or to any position reported on a tax return, it might be necessary to pursue administrative appeals or litigation. Decisions of whether and how to pursue administrative appeals or litigation may be based on considerations of cost, publicity, and other matters unrelated to the technical merits of a tax position. In some cases, taxpayers elect not to pursue appeals or litigation even though a reported position may ultimately be sustained on appeal or in litigation.
  9. Disclaimer of Legal and Investment Advice. Our services under the Agreement and these Terms do not constitute legal or investment advice. We recommend that you retain competent legal counsel and investment advisers.
  10. Record Retention. Notwithstanding the terms of Section 5 of the Agreement, Federal tax law requires us to retain either copies of tax returns we prepare or specified information relating to those returns, as well as certain other documents related to our tax services for varying time periods. Our current policy (which we may revise at any time and in our sole discretion) is to retain copies of tax returns and certain related workpapers for seven years after the return is filed, subject to casualties beyond our control. We provide our clients with a file copy of each federal income tax return for which we are a signing preparer, and we recommend that you retain this copy for at least seven years. Although taxpayers are not required to retain their tax records for longer than our seven-year recommendation, there are situations in which tax returns older than seven years may contain information useful in future tax planning. For example, prior year returns may contain information relating to the basis of assets for gain/loss calculations, and corporations may use tax return information in calculating “earnings and profits” for corporate tax planning. We recommend that taxpayers consider maintaining separate accounting records or work papers with this information. If you would like us to assist you in developing these separate records, please call us to discuss the scope of such a project. It may also be advisable to retain accounting or tax records for longer than seven years for reasons Unrelated to taxes. Decisions regarding document retention may involve a variety of legal considerations (e.g., statutes of limitations, rules of evidence), so you may wish to consult your legal counsel to address these legal considerations.

4. General Business Terms

  1. Termination. Termination for any reason will not affect your obligation to pay us for fees and expenses incurred prior to termination or in transferring files to and otherwise cooperating with any successor tax preparer or tax advisor. If you terminate any Selected Services for tax or 1099 services or this Agreement after we have commenced performing services under a fixed fee arrangement, you will be obligated to pay us the entire fixed fee upon termination.
  2. Survival of Provisions. All provisions of these Terms will survive the termination or cancellation of the Engagement, except that (i) we will not have any obligation to provide services after termination and (ii) except as provided in Section 19 of the Agreement and Section 4.1 hereof, you will not have any obligation to pay us for any services that we perform after termination.
  3. Opportunity to Cure. Notwithstanding Section 8 of the Agreement and subject to Section 14 of the Agreement, in the event that we fail to meet our obligations under the Agreement or these Terms with respect to any Selected Services for tax or 1099 services, you shall notify us in writing and provide us with the opportunity to re-perform the services. If the services cannot be re-performed, or if re-performance will not cure the breach in a reasonable period of time, then your sole remedy will be for us to refund the Fees relating to the specific Selected Services as agreed in writing and terminate the relevant Selected Services or this Agreement.
  4. Fee Disputes. The Company and ScaleFactor both agree that any dispute over Fees charged by us to you or any other matter with respect to any Selected Services for any tax or 1099 services that is not resolved through mediation or otherwise in accordance with Section 13 of the Agreement will be resolved exclusively by arbitration in accordance with the Rules for Professional Accounting and Related Services Disputes of the American Arbitration Association. The parties shall select a mutually acceptable arbitrator knowledgeable about issues relating to the applicable tax or 1099 services. In the event the parties are unable to agree to such a selection, each party will select an arbitrator and the two arbitrators in turn shall select a third arbitrator, all three of whom shall preside jointly over the matter. The arbitration shall take place in Austin, Texas, or as otherwise mutually agreed upon by the parties. All documents, materials, and information in the possession of each party that are in any way relevant to the dispute shall be made available to the other party for review and copying no later than 30 days after the notice of arbitration is served. The arbitrator(s) shall not have the authority to modify any provision of this Agreement or to award punitive damages. The arbitrator(s) shall have the power to issue mandatory orders and restraint orders in connection with the arbitration. The decision rendered by the arbitrator(s) shall be final and binding on the parties, and judgment may be entered in conformity with the decision in any court having jurisdiction. The agreement to arbitration shall be specifically enforceable under the prevailing arbitration law. IN AGREEING TO ARBITRATION, WE BOTH ACKNOWLEDGE THAT, IN THE EVENT OF A DISPUTE, EACH OF US IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE RIGHT TO HAVE THE DISPUTE DECIDED IN A COURT OF LAW BEFORE A JUDGE OR JURY AND INSTEAD WE ARE ACCEPTING THE USE OF ARBITRATION FOR RESOLUTION OF ANY DISPUTE OR OTHERWISE IN CONNECTION WITH FEES CHARGED BY SCALEFACTOR OR ANY TAX OR 1099 SERVICES. The parties hereby irrevocably and unconditionally agree that service of process in any such Dispute may be effected by mailing a copy of such process by certified mail, postage prepaid, to such party at the address provided by such party. The party prevailing in any Dispute shall be entitled, in addition to any other relief that may be granted, to be awarded costs, including its reasonable attorneys’ fees and the cost of arbitration.
  5. Newsletters and Similar Communications. We may from time to time send newsletters, mails, explanations of tax law developments, or similar communications to selected clients, former clients, or other interested parties. These communications are of a general nature and are not definitive advice. We do not send all such communications to all clients, former clients, or interested parties. These newsletters do not establish or continue a client relationship with any person, and they do not constitute an undertaking on our part to monitor tax or other issues for you or for any other parties.

5. Savings

  1. Savings Clause. In the event any provision herein violates a tax jurisdiction’s Standard of Conduct specifically applicable to a client, as to that client, such provision shall be (i) modified to the extent necessary to be in compliance with that specific standard, or (ii) rendered void if modifying the provision cannot result in compliance with the specifically applicable standard. In the event any portion of the Agreement, including these Terms, is found to be void, illegal or unenforceable, all remaining provisions shall remain in full force and effect.

Payment Services Terms & Conditions

These Payment Services Terms and Conditions (the “Terms”) are pursuant to and in accordance with the “Terms of Service” at www.scalefactor.com/terms-of-service.

Except as specifically set forth in these Terms, the terms and conditions of the Agreement shall apply fully to the provision of the Selected Services for tax or 1099 services. If there is any conflict between the terms of the Agreement and these Terms, however, the Terms & Conditions shall apply.

Payment functionality of the Scalefactor Service is provided by Dwolla, Inc. (“Dwolla”) and governed by the Dwolla Terms of Service and Privacy Policy . By agreeing to this Master Agreement and your continued use of the ScaleFactor Service, you agree to be bound by the Dwolla Terms of Service . Any funds held in the Dwolla account are held by Dwolla’s financial institution partners as set out in the Dwolla Terms of Service. You authorize us to share your identity and account data with Dwolla for the purposes of opening and supporting your Dwolla account, and you are responsible for the accuracy and completeness of that data. You understand that you will access and manage your Dwolla account through our application, and Dwolla account notifications will be sent by us, not Dwolla. We will provide customer support for your Dwolla account activity.