Terms of service
These SaaS Service Terms for Instead (these “Service Terms”), together with the applicable Service order and Payment Authorization (collectively, the “Agreement”), constitute a binding agreement by and between Instead, LLC (“Instead”) and Customer (as defined below) with respect to Customer’s access and use of one or more Instead software-as-a-service offerings for taxpayers and related content and materials (each, a “Service”). Customer accepts and agrees to be bound by these Service Terms by ordering, accessing or using a Service.
- “Account “ means an account that Instead enables for Customer and its Authorized Users to access and use one or more Services.
- "Affiliate" means an entity that controls, is controlled by, or is under common control with the subject entity, where "control" means direct or indirect ownership of more than 50% of the voting interests of the subject entity.
- "Aggregate Information" has the meaning given in Section 4(d).
- “Applicable Laws” means all applicable local, state, provincial, federal, and international laws, rules or regulations.
- "Authorized Users" means Customer or Customer’s employees who are authorized by Instead to access and use the Service and who have been supplied with user identifications and passwords by Customer (or by Instead at Customer’s request). Authorized Users may be tax planning users (who have full access to the Service) and administrative users (who have limited access to the Service). Customer’s Authorized Users include any Tax Advisor that Customer authorizes to access its Account as described in Section 2(c).
- "Confidential Information" has the meaning given in Section 4.
- “Console Client” means a Tax Advisor Customer’s client whose Account is linked to the Tax Advisor Customer’s Account in Instead Pro.
- “Instead Materials” means all templates, samples, recordings, videos, newsletters, files, images, logos, information, and other content and materials of Instead and its Affiliates (and all related Intellectual Property rights) contained or used in the Service (other than the Customer Data), contained in Instead’s knowledge base, or otherwise provided to Customer in connection with the Service. Instead Materials may include Third-Party Materials.
- “Instead Technology” means the technology, including software programs, connectors, websites, networks, and equipment (and all related Intellectual Property rights), used in providing the products and services offered by Instead and its Affiliates. Instead Technology does not include Third-Party Materials.
- “Customer” means an individual or business entity, which may be a taxpayer or a Tax Advisor, that subscribes to a Service (including both paid and free Service offerings).
- "Customer Data" means (i) any data, documents, information or material uploaded or submitted by Customer to or through the Service (including, in the case of Tax Advisor Customers, the data, documents, information or material uploaded or submitted to or through the Service for or on behalf of their clients) and (ii) the Service Output. Customer Data does not include Aggregate Information or descriptions of tax issues, requirements or strategies (other than any Customer- and Customer client-unique data or information contained in such descriptions).
- “Documentation” means the then-current instruction manuals, user guides, instructional videos, and similar documentation for the Service provided by Instead through its online customer portal or within the Service.
- "Effective Date" means the start date for the Subscription Term.
- “Fees” means the fees, taxes (if applicable), reimbursable expenses, and other amounts payable by Customer for the Service.
- "Initial Subscription Term" means the initial subscription period for which Customer is obligated to pay for the Service, as set forth in the initial order for the Service.
- "Intellectual Property" means Inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property and proprietary rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world (whether registered or unregistered), any application for the foregoing, and all rights to enforce the foregoing.
- "Invention" means any work of authorship, invention, know-how, device, design, algorithm, method, process, improvement, concept, idea, expression, or discovery, whether or not copyrightable or patentable and whether or not reduced to practice.
- “Payment Schedule” means the payment terms and payment schedule for the Service(s) to which Customer subscribes. A Payment Schedule may be set forth in the order for the service, in a Payment Authorization and/or in a separate document.
- “Payment Authorization” means the payment authorization provided by Customer (or if applicable, the person or entity paying the Fees for the Service on behalf of Customer) in an order for the Service, within the Service or otherwise.
- “Renewal Notice” means the notification sent by Instead before the commencement of each Renewal Subscription Term for the Service, including the pricing for the Service for such Renewal Subscription Term.
- “Renewal Subscription Term” has the meaning given in Section 6(a).
- “Representative” of a party means the employees, directors, officers, consultants, professional advisors, representatives, or agents (and, in the case of Customer, Authorized Users) of such party and its Affiliates.
- “Service Output” means the Customer-unique (and, in the case of Tax Advisor Customers, Customer client-unique) output that is generated for Customer by the Service (excluding any Instead Materials or Third-Party Materials therein), including tax strategies provided or calculations performed by the Service.
- “Tax Advisor” means an accountant or other financial services professional.
- “Tax Advisor Customer” means a Customer that is a Tax Advisor using the Service (through Instead Pro or otherwise) on behalf of or with respect to one or more of its clients.
- “Instead Pro” means the Service described in Section 2(j) of these Service Terms.
- “Term,” “Subscription Term” and “Renewal Subscription Term” have the meanings given in Section 6.
- “Third-Party Materials” means software, technology, services, or websites of third parties that may be used in conjunction with the Service or templates, samples, recordings, files, images, logos, information, content or materials of third parties contained, used in or linked to the Service (other than the Customer Data).
Access and Use Of The Service
- Access and Use Rights. Subject to and conditioned on compliance with the Agreement, Instead hereby grants Customer a non-exclusive, non-transferable, non-sublicensable, revocable, worldwide right to access and use the Service and Documentation during the Term, solely for Customer’s personal use or, in the case of Tax Advisor Customers and taxpayer Customers who are entities, its internal business purposes (which, in the case of Tax Advisor Customers, includes the provision of services to Customer’s clients) and for the number of Authorized Users and subject to any limitations or restrictions specified in the Agreement. All rights not expressly granted to Customer are reserved by Instead.
- Account. Customer and Authorized Users shall protect the confidentiality and security of usernames, passwords, access and Account information under their control. Customer is solely responsible for any and all activities that occur under the Account. Except to the extent caused by Instead’s breach of the Agreement, Instead is not responsible for unauthorized access to the Account. Customer shall notify Instead immediately upon learning of any unauthorized use of the Account or other security breach relating to the Service.
- Account Access by Tax Advisors. Customer may authorize its Tax Advisor(s) to configure, access, operate and manage Customer’s Account (or particular entities within the Account), either through Instead Pro or otherwise through the Service. Customer agrees that Instead may provide a Tax Advisor with the ability to configure, access, operate and manage Customer’s Account (or particular entities within the Account, as the case may be) in accordance with Client’s authorization.
- Third-Party Materials. The Service may contain (or Instead may otherwise provide Customer with) Third-Party Materials or access or links to Third-Party Materials. Instead is not responsible for and does not in any way endorse any Third-Party Materials. Such Third-Party Materials are subject to the licenses or other terms of access and use imposed by the owners or licensors of such Third-Party Materials. If Customer does not agree to abide by the licenses or other terms for any such Third-Party Materials, then Customer should not install, access or use such Third-Party Materials.
- Restrictions. Customer shall use the Service, the Instead Materials and the Service Output only as set forth in the Agreement and the Documentation and, except as expressly contemplated by the Agreement and the Documentation with respect to the use of the Service to aid a Tax Advisor Customer in its provision of services to its clients, shall not use the Service, the Instead Materials or the Service Output for the benefit of any third party. Customer shall not, and shall not allow its Authorized Users, Representatives or any third party to, (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute or otherwise commercially exploit the Service, the Instead Materials, the Documentation or, except for the use of the Service Output to aid a Tax Advisor Customer in its provision of services to its clients, the Service Output; (ii) except as expressly contemplated by the Documentation with respect to Instead Pro, share, make available or display the Service, the Instead Materials or the Documentation to any third party other than Authorized Users; (iii) use the Service or the Instead Materials to operate any timesharing, service bureau, software-as-a-service or similar business; (iv) copy, modify, adapt, enhance or otherwise create any derivative work of the Service, the Instead Materials, the Instead Technology or the Documentation or, except as expressly contemplated by the Documentation with respect to the use of the Service to aid a Tax Advisor Customer in its provision of services to its clients, the Service Output; (v) access or use the Service, the Instead Technology, the Instead Materials, the Documentation or the Service Output for any purpose not expressly contemplated by the Documentation, including to design or build a product or service that competes with the Service or that contains features, functions, graphics or design similar to those of the Service; (vi) decompile, reverse engineer, disassemble, or otherwise attempt to derive the source code of or decrypt the Service or the Instead Technology; (vii) violate any Applicable Laws in connection with access or use of the Service, the Instead Technology, the Instead Materials, the Documentation or the Service Output; (viii) remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of Instead or its Affiliates, commercial partners, suppliers or licensors within the Service, the Instead Technology, the Instead Materials the Documentation or, if applicable, the Service Output; (ix) use or permit the Service to be used by more than the then-current number of Authorized Users, including by making the Service available over a network or other environment; (x) use the Service to store, transmit or introduce any malicious code that interferes or attempts to interfere with the operation of the Service or the Instead Technology; (xi) interfere with or disrupt the integrity or performance of the Service or Instead Technology or attempt to do so; (xii) use the Service, the Instead Technology, the Instead Materials, the Service Output or Third-Party Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any person; or (xiii) use any Instead Confidential Information, Instead Materials, or interfaces of Instead or other Intellectual Property of Instead in the design, development, manufacture, licensing or distribution of any applications, accessories or devices designed for use with the Service.
- Customer Responsibilities.
- Customer is responsible for ensuring that the Services are compatible with Customer’s business and systems requirements and for the provision, maintenance, and use of Customer’s hardware, network, internet connectivity, and software.
- Customer is responsible for the accuracy, quality, completeness, appropriateness, timeliness, integrity, legality and all other aspects of Customer Data, the means by which Customer acquired it, and for keying it accurately into the Service. Instead does not have any obligation to approve, control or verify Customer Data. Without limiting the generality of the foregoing, a Tax Advisor Customer using Instead Pro is solely responsible for Customer Data that such Tax Advisor Customer uploads and manages through Instead Pro.
- Customer is responsible for reviewing the Service Output and satisfying itself that it is complete and correct. Customer acknowledges and agrees that any decisions regarding tax treatment are made solely by Customer and that use of the Service does not relieve Customer of responsibility for the preparation, accuracy, content, and review of its (or, in the case of a Tax Advisor Customer, its clients’) tax plans, tax recommendations, tax strategy calculations, implementation of tax strategies, tax returns and filings. Instead will not be liable for any legal, financial or accounting errors or violation of Applicable Laws by Customer (or, in the case of a Tax Advisor Customer, its clients), including any made in reliance on the Service Output, or for billing errors and omissions by Customer.
- In order to use the electronic filing service of the Service or the IRS, Customer must obtain a valid preparer tax identification number (PTIN) and a valid electronic filing identification number (EFIN) from the IRS and maintain them as current. Customer shall provide Instead with a copy of Customer's completed EFIN acceptance letter or other documentation reasonably requested by Instead regarding ownership of an EFIN that Customer uses with the Service, before using the Service’s electronic filing service. By using a computer system and the Service to prepare and transmit tax filings electronically, Customer consents to the disclosure to the applicable state and/or federal agency of all information relating to its use of the computer system and the Service to generate such filing and to the electronic transmission of such filing.
- Customer is responsible for all acts and omissions of its Authorized Users and other Representatives, and any act or omission by an Authorized User or Representative of Customer that would constitute a breach of the Agreement if done by Customer will be deemed a breach of the Agreement by Customer.
- Customer represents and warrants that (i) it has not falsely identified itself nor provided any false information to gain access to the Service; (ii) the information provided about Customer in connection for the Service, including Customer’s billing information and Customer’s firm name, owner name, PTIN, EFIN, other identifying information and contact information, is correct, and that Customer will provide Instead with written notification of any changes to such information no later than 30 days after the change.
- Customer shall comply with Applicable Laws and shall not use the Service, the Instead Materials or the Service Output to violate, or to assist any other person or entity in violating, Applicable Laws.
- Affiliates. Instead may provide the Service itself or through any of its Affiliates. When a Instead Affiliate provides the Service, all applicable references to “Instead” in the Agreement relating to provision of the Service refer to such Affiliate. Instead or its Affiliate may invoice or provide Renewal Notices to Customer for the Service, and unless otherwise specified in such invoice or Renewal Notice, Customer shall make payment to the Instead Affiliate that issued it. Instead is responsible for its Affiliates’ compliance with the terms of the Agreement, and Instead shall be responsible for their acts and omissions relating to the Agreement as though they were those of Instead. Customer and its Affiliates shall bring any claims it or they may have solely against Instead and not against any Instead Affiliate providing or invoicing for the Service.
- Subcontractors. Instead may use subcontractors to facilitate its obligations under the Agreement, and Instead shall be responsible for the acts and omissions of such subcontractors relating to the Agreement as though they were those of Instead.
- Beta Features. Notwithstanding anything to the contrary in the Agreement, Instead will not have any liability (including in respect of warranty and indemnification obligations) for or related to any Service feature that is designated as "Beta" or otherwise identified as being for beta testing purposes or unsupported.
- Instead Pro. Through Instead Pro, a Tax Advisor Customer that subscribes to such Service may invite its clients to create a taxpayer Account that will be linked to its Account in Instead Pro, or create such an Account on behalf of its client; invite its clients to link a previously created Account to its Account in Instead Pro, or link such an Account on behalf of its client; and configure, access, operate and manage all such linked Accounts (or entities within such Accounts) on behalf of its Console Clients.
- When a Tax Advisor Customer creates or links a taxpayer Account to its Account in Instead Pro, such Tax Advisor Customer represents and warrants to Instead that: (A) it provides professional financial consulting or accounting services to such Console Client under an existing business relationship; and (B) it has obtained all required rights, consents and authorizations from the Console Client to create or link the Account, to configure, access, operate and manage the linked Account and use the Service for and/or on behalf of the Console Client, and to upload the Console Client’s Customer Data to the Service for processing (and will provide documentation of any such rights, consents or authorizations upon request by Instead).
- As between Instead and a Tax Advisor Customer, the Tax Advisor Customer is responsible for the accuracy, quality, completeness, appropriateness, timeliness, integrity, legality and all other aspects of the data, documents, information or material it provides in connection with creating or linking a taxpayer Account, the means by which the Tax Advisor Customer acquired it, and for keying it accurately into the Service. Instead does not have any obligation to approve, control or verify it.
- When a taxpayer Customer becomes a Console Client by accepting an invitation to an Account created or linked by a Tax Advisor Customer, such Console Client represents and warrants to Instead that the Tax Advisor Customer provides professional financial consulting or accounting services to such Console Client.
- Each Tax Advisor Customer and Console Client understands and agrees that each of them accepts these Service Terms separately from each other.
- A Tax Advisor Customer is not an agent of Instead and has no authority to (and shall not) provide any representations, warranties or covenants with respect to Instead Pro, the Services or any other Instead service.
- Neither the Agreement nor the use of Instead Pro creates an agency, partnership, joint venture, employment, or other similar relationship between Instead and any Tax Advisor Customer.
- Changes to Service. Instead reserves the right, in its sole discretion, to make any changes to the Service that it deems necessary or useful, including changes to maintain or enhance the Service or to comply with Applicable Laws. Customer acknowledges and agrees that Customer has not relied on any future availability of any service offerings, technology, or additional, enhanced or updated features or functionality.
Intellectual Property Ownership; Feedback
- Instead Intellectual Property. Instead, its Affiliates and their licensors own and will retain all right, title and interest in the Service, Documentation, Instead Technology, Instead Materials, Confidential Information of Instead or its Affiliates, and all enhancements, improvements or derivative works of the foregoing, including all related Intellectual Property rights. Nothing in the Agreement grants or conveys any Intellectual Property rights or ownership rights in any of the foregoing, except for the limited rights expressly provided in the Agreement.
- Customer’s Intellectual Property; Customer Data.
- Subject to clause (ii) of this subsection (b), Customer owns and will retain all right, title and interest in Customer Data and Customer’s Confidential Information, including all related Intellectual Property rights.
- As between Tax Advisor Customers and their Console Client, the Console Client owns and will retain all right, title and interest in its Customer Data that is uploaded, stored, shared, created for the Console Client or otherwise processed to or within a Tax Advisor Customer’s Account in Instead Pro (“Client Data”). In the event of a conflict between a Console Client and a Tax Advisor Customer regarding ownership or release of documents, data, or other information, Instead reserves the right to refuse to release the documents, data or other information to either party, absent the consent to release from the other party or the receipt of a legally binding order from an authority of competent jurisdiction.
- Nothing in the Agreement grants or conveys to Instead any ownership rights in the Customer Data or Customer’s Confidential Information, except as provided in Section 4(d) with respect to the creation and ownership of Aggregate Information.
- Feedback. If Customer or its Representative provides Instead or its Affiliate with any suggestions, ideas, requests for strategy additions or other enhancements, questions, testimonials or success stories, or other feedback relating to the Service, whether directly to Representatives of Instead or its Affiliates, through the Service, through social media, during community forums or events or otherwise, and whether in written, audio or video format (“Feedback”), Customer grants to Instead and its Affiliates a nonexclusive, perpetual, irrevocable, fully paid-up, royalty-free, worldwide license, with rights to transfer and sublicense, to (i) use, reproduce, publish, display and/or distribute in any medium, sell, modify (as long as the substance of the original Feedback is not misrepresented) and make derivative works of, such Feedback for marketing, publicity, and promotion of Instead, its Affiliates and its and their products and services and for all other commercial business purposes and (ii) use, reproduce, publish, display and/or distribute Customer’s name or logo (and in the case of video Feedback, the image of Customer’s Representative(s)) in connection with such Feedback. Neither Instead nor any of its Affiliates is required to use or publish any Feedback, identify its source, or compensate Customer or its Representatives for use or publication of Feedback.
- Definition of Confidential Information. “Confidential Information” means information disclosed by a party (the “disclosing party”) to the other party (the “receiving party”) in connection with the Agreement that is marked as confidential or that would reasonably be considered confidential under the circumstances. Confidential Information includes, with respect to Instead and its Affiliates, the non-public aspects of the Service, the Instead Technology, non-public Instead Materials and Documentation and lists of customers, and with respect to Customer, all non-public Customer Data, and with respect to both parties, the terms of the Agreement and all non-public information relating to business plans and strategies, customers, data, financial information, forecasts, market analysis, pricing, Inventions, designs, products (whether actual, contemplated, experimental or planned), security measures, and software code. Confidential Information does not include descriptions of tax issues, requirements or strategies (other than any Customer- or Customer client-unique data or information contained therein) or information that the receiving party can demonstrate by documentation was (i) already rightfully known to the receiving party without restriction on use or disclosure prior to the receipt of such information from or on behalf of the disclosing party, (ii) received by the receiving party on a non-confidential basis from a third party without a breach of an obligation to maintain its confidentiality, (iii) was or becomes generally known to the public other than by breach of the Agreement by the receiving party, or (iv) independently developed by the receiving party without use or reference to the disclosing party's Confidential Information.
- Restrictions on Use and Disclosure of Confidential Information. The receiving party shall use the confidential information of the disclosing party solely to perform its obligations and exercise its rights under the Agreement, to comply with Applicable Laws, or as otherwise permitted under the Agreement. Except as provided in Section 2(c) or subsection (d) of this Section 4, the receiving party shall hold Confidential Information of the disclosing party in strict confidence and shall not disclose or authorize the disclosure of such Confidential Information to any third party, except to the receiving party's Affiliates and its and their Representatives or service providers who (i) have a need to know such Confidential Information and (ii) are bound by a written agreement or other legally binding obligation of confidentiality and restricted use at least as protective as this Section 4. The receiving party is responsible for use and disclosure of the Confidential Information by its Affiliates and its and their Representatives and service providers and their compliance with the obligations of the receiving party under this Section 4. The receiving party shall protect Confidential Information of the disclosing party from unauthorized access and disclosure using the same degree of care, but in no event less than a reasonable standard of care, that it uses to protect its own Confidential Information of a similar nature. Each receiving party shall promptly notify the disclosing party, without undue delay in accordance with Applicable Laws, of unauthorized access, use, or disclosure of any of the disclosing party's Confidential Information in the receiving party's possession or under its control.
- Disclosure Required by Law. The receiving party may disclose Confidential Information of the disclosing party in order to comply with the order of a court, regulatory agency or other governmental body of competent jurisdiction, or as otherwise necessary to comply with Applicable Laws, provided that the receiving party shall first have given written notice to the other party (if legally permitted to do so) and shall cooperate with the disclosing party, at the disclosing party’s reasonable expense, in seeking and obtaining protection for the Confidential Information. If the receiving party is legally compelled to disclose Confidential Information of the disclosing party, the receiving party shall disclose only that portion of the Confidential Information that is legally required to be disclosed.
- Aggregate Information. Instead may monitor Customer’s (and, if applicable, its Tax Advisors’) use of the Service and collect and use associated metadata, including IP addresses, stored sessions, and network metadata, for the purposes of providing the Service. In addition, Instead and its Affiliates’ may collect and compile “Aggregate Information,” which is metadata, data, strategies, and other information of or related to customers and their use of the Service that is collected into groups so that no individually identifiable person or entity is identifiable as its source. As between the parties, Instead solely owns all right, title, and interest in Aggregate Information and all related Intellectual Property rights, and Customer acknowledges that there are no confidentiality obligations or other restrictions on Instead’s and its Affiliates’ use of Aggregate Information.
Data Protection and Privacy
- Compliance with Laws. For the purposes of the Agreement, each party is responsible for complying with Applicable Laws applicable to its business, including those regarding data privacy. To the extent that Customer is required to comply with the California Consumer Privacy Act (“CCPA”), the California Consumer Privacy Rights Act, the Virginia Consumer Data Protection Act, the Colorado Consumer Protection Act, the Utah Consumer Privacy Act, or any other existing or newly enacted Applicable Laws regarding data privacy, Instead shall facilitate Customer’s compliance with its obligations under such Applicable Laws, including with respect to data security and responses to data subject requests relating to Personal Information in Instead’s possession or under its control. Customer shall ensure that it has all necessary rights and permissions required by Applicable Laws and otherwise for submission and use of Customer Data as contemplated by the Agreement.
- Use of Customer Data. Instead and its Affiliates may retain, use, and disclose Customer Data solely (i) to provide the Services, provide customer support and otherwise perform Instead’s obligations under the Agreement; (ii) for internal business purposes to maintain, evaluate, develop, and improve the Services; (iii) to comply with Applicable Laws; (iv) as otherwise provided in the Agreement or the Documentation.
- Processing of Customer Data; CCPA. If Instead processes Customer Data on behalf of Customer, the Agreement and the Documentation are Customer’s instructions for processing Customer Data. If Instead’s provision of the Service is subject to the CCPA and Instead processes Customer Data that includes personal information, as defined by the CCPA (“CCPA Personal Information”) (i) Instead collects, retains, uses, and discloses such CCPA Personal Information solely for the permitted purposes described in the Agreement and does not sell (as defined in the CCPA) CCPA Personal Information; and (ii) Instead certifies that it understands and will comply with the foregoing restrictions.
- Data Protection. Instead shall maintain commercially reasonable technical, administrative and physical safeguards and procedures designed to comply with Applicable Laws, to protect the security, confidentiality and integrity of, and protect against unauthorized release, access, destruction, modification, or disclosure of, Customer Data and Customer's Confidential Information. Instead shall use commercially reasonable measures to ensure that any Instead subcontractors use reasonable data protection safeguards and procedures in handling any Customer Data or Customer's Confidential Information.
- Breach Notification. In the event that Instead becomes aware of unauthorized access, use, or disclosure of Customer Data or Customer's Confidential Information in Instead's possession or under Instead's control, Instead shall (i) promptly notify Customer of such incident without undue delay in accordance with Applicable Laws and provide Customer with information regarding such incident as reasonably requested by Customer to enable Customer to comply with its obligations under Applicable Laws; and (ii) use commercially reasonable efforts to identify the cause of and remediate the cause of the incident within Instead's systems, to the extent such remediation is within Instead's reasonable control.
Term; Termination; Suspension Of Service
- Subscription Terms. Unless earlier terminated as provided in the Agreement, (i) the initial Subscription Term for a Service will be the subscription term specified in the initial order for such Service (generally one month), starting on the date of the order, unless a different Effective Date is set forth in the order; and (ii) Customer’s subscription to the Service will thereafter automatically renew for successive additional periods of the same length (each, a “Renewal Subscription Term”), unless either (A) Customer cancels the subscription renewal by providing Instead with written notice of non-renewal to firstname.lastname@example.org at least 30 days before the expiration date of the then-current Subscription Term, or (B) Instead cancels the subscription renewal by providing Customer with written notice of non-renewal before the end of the then-current Subscription Term. The initial subscription term and each Renewal Subscription Term are referred to in the Agreement as a “Subscription Term”. A Subscription Term may not be terminated before its end except as expressly permitted by the Agreement.
- Term of Agreement. The term of the Agreement (the "Term") begins on the Effective Date for the initial Subscription Term for Customer’s first Service subscription and ends on the date of termination or expiration of the last Renewal Subscription Term of a Service.
- Termination for Cause.
- Either party may, in addition to other relief, terminate the Agreement if the other party breaches any material provision thereof and, if such breach is capable of cure, fails within 30 days after receipt of notice of default to correct such default. During any period of breach, Instead may suspend Customer’s access to the applicable Service(s) as provided in Section 6(d).
- Either party may terminate the Agreement by written notice to other party if the other party (A) ceases to operate in the ordinary course, (B) becomes insolvent or generally unable to pay its debts as they become due, (C) becomes the subject of any bankruptcy, liquidation, dissolution or similar proceeding that is not resolved within 60 days of filing, (D) makes an assignment for the benefit of its creditors, or (E) has a receiver, trustee, custodian, or similar agent appointed for a material portion of its property or business (any of these, an “Insolvency Event”).
- Suspension of Service. Notwithstanding anything to the contrary in the Agreement, Instead may (in addition to any other rights and remedies) suspend Customer's and any Authorized User's access to any portion or all of the Service, without liability to Customer, if (i) there is a material risk to or disruption of the security or performance of the Service or the Instead Technology or to any Affiliate, customer, supplier, vendor or commercial partner of Instead that was caused by Customer, its Affiliates, or its or their Authorized Users or Representatives (a “System Threat”); (ii) Customer is subject to an Insolvency Event; (iii) Customer is in breach of its payment obligations under the Agreement; (iv) Customer or any of its Representatives is using the Service, the Instead Materials or the Services Output for activities that are or are potentially fraudulent, in violation of Applicable Law or otherwise in breach of the Agreement; (v) Customer or any of its Affiliates is the subject of an investigation or legal action by or at the direction of any regulatory, governmental, or judicial authority, or if Customer or any of its Affiliates commits or is alleged to have committed acts of fraud or abuse that may compromise the integrity or reputation of the IRS E-file program and/or Instead (as determined by Instead in its sole discretion); or (vi) Instead's provision of the Service to Customer or any Authorized User is prohibited by Applicable Law. If the suspension is for a System Threat, Instead shall use commercially reasonable efforts to provide prior notice to Customer, including by phone or email to Customer’s account contact. Instead shall work in good faith with Customer to resolve the circumstance giving rise to the suspension and shall resume providing access to the Service as soon as reasonably possible after the event giving rise to the suspension is resolved. Customer will continue to be obligated to pay all Fees for the Service during the period of suspension and Customer will not be entitled to any compensation or credits for any period of suspension, unless the suspension was due to Instead’s error or omission or a System Threat not caused by Customer, its Affiliates, or its or their Authorized Users or Representatives.
- Effect of Termination. Upon termination or expiration of the Agreement, Customer’s rights under the Agreement immediately terminate (with the exception of those surviving termination, as described below). Customer remains responsible for all Fees and other payment obligations applicable to the remainder of the then-current Subscription Term, no refunds are available for any portion of the Subscription Term that has been prepaid, and Customer expressly waives any right to charge back any amount paid via credit card or other means. All provisions that by their nature should survive termination of the Agreement will do so (including, by way of example and not limitation, payment obligations, indemnification and defense obligations, and duties of confidentiality).
- Return and Deletion of Customer Data.
- Upon Customer’s written request at any time up to 90 days after termination of the Agreement or the applicable Service, Instead shall either (i) provide Customer with limited access to the Service, at no additional cost and subject to the obligations and restrictions of the Agreement, solely for the purpose of retrieving Customer Data; or (ii) provide an export file of Customer Data stored on Instead’s systems in a commonly used format reasonably determined by Instead and subject to Instead’s standard fees for the preparation for such export file. Any such retrieval by or export to a Tax Advisor Customer of Customer Data of a Console Client will require the authorization of such Console Client. Instead may, but has no obligation to, maintain or return Customer Data more than 90 days after termination of the Agreement.
- Upon Customer’s written request at any time during the Term or up to 90 days after termination of the Agreement, Instead shall promptly destroy or overwrite Customer Data or Customer's Confidential Information in Instead’s possession or under its control, other than Customer Data or Customer's Confidential Information contained in automatic computer backups or historical archives or that must be retained to fulfill obligations under the Agreement or another agreement with a Instead Affiliate, for regulatory, legal, or audit purposes, or for compliance with Instead's data retention policies. If Customer requests that Instead permanently destroy or overwrite Customer Data, Customer releases Instead from any claims or liability relating to that Customer Data. Notwithstanding the foregoing, a Tax Advisor Customer does not have the right to request that Instead destroy or overwrite Customer Data in the Accounts of its clients who are Customers.
- Fees. Subject to subsections (c) and (d) of this Section 7, Customer shall pay the Fees applicable to the Service purchased by Customer, without offset or deduction, in accordance with the order for such Services and the Payment Schedule. For the avoidance of doubt, notwithstanding any agreement by a Tax Advisor or other person or entity to pay Fees for paid Services on behalf of a taxpayer Customer, such taxpayer Customer is responsible for payment of Fees for all paid Services (including Fees for any entities, users or premium strategies added to such taxpayer Customer’s Account by a Tax Advisor). All Fees are denominated and payable in US dollars. The Service subscription is non-cancellable during a Subscription Term and Fee payments are non-refundable.
- Taxes. Customer is responsible for paying (or reimbursing Instead for its payment of) all sales, use and excise taxes and other similar taxes, duties or other charges assessed or imposed by any governmental authority with respect to the Service, other than taxes based on Instead’s income.
- Payment Schedule for Renewal Subscription Terms. The payment for Fees for Renewal Subscription Terms shall be made using the same payment frequency and payment method set forth in the Payment Authorization, unless Instead notifies Customer of a change of payment frequency at least 30 days prior to the beginning of the applicable Renewal Subscription Term.
- Renewal Pricing. Instead reserves the right to change the Fees applicable to the Service for any Renewal Subscription Term, effective on the first day of such Renewal Subscription Term, provided that Instead has given Customer at least 30 days’ prior written notice of the pricing change as provided in this subsection (d). If pricing for the upcoming Renewal Subscription Term will change, Instead shall specify the new pricing terms in the Renewal Notice sent at least 30 days prior to the expiration of the current Subscription Term (such specification of new pricing, a “Price Change Notice”). If the subscription renewal is not timely canceled as provided in Section 6(a), the subscription will automatically renew with the pricing set forth in the Price Change Notice.
- Authorizations. Customer authorizes Instead or its billing platform to initiate entries to the bank account or credit card specified in the Payment Authorization in order to pay the amounts due and, if necessary, to initiate adjustments for any transactions credited or debited in error. No prior notification of a charge will be required or provided unless the scheduled payment date or amount changes for a Renewal Subscription Term, in which case prior notice will be given as provided in these Service Terms. This authorization (as modified to reflect any changes in Customer’s account information notified to Instead) will remain in effect during the duration of the Agreement, unless and until either Instead or Customer provides 14 days' written notification of a change in payment method. Customer agrees to (i) not dispute scheduled charges that correspond to the terms of the Payment Schedule and the Agreement and (ii) in the event of a new payment method or a change in other account information, to update its Payment Authorization at least 14 days prior to the next billing date. Customer represents and warrants that the origination of ACH transactions or credit card transactions (as the case may be) to its account in accordance with the Agreement complies with applicable law.
- Late Payments. Overdue amounts will bear interest at the rate of 1.5% per month or the maximum rate permitted by Applicable Laws, whichever is less. Customer shall reimburse Instead for any collection agency fees, attorney’s fees, court costs and other reasonable expenses Instead incurs in collecting any overdue amounts. In addition, Instead may suspend the Service as provided in Section 6(d).
- Payment Disputes. Customer must assert any payment dispute in writing within 3 days after the due date of the invoice giving rise to the dispute. Customer waives the right to dispute any payment that Customer does not dispute in writing within such period. Any undisputed portion of an invoice must be paid by the due date.
- Fee Payments on Behalf of Taxpayer Customers. Customer's Tax Advisor or other person or entity who invites Customer to the Service may pay the applicable Fees on behalf of such Customer. However, Customer remains responsible for the payment of all Fees. If neither the person or entity who undertook to pay the Fees nor Customer pays the applicable Fees when due, Instead may suspend Customer’s Account or downgrade it to a free version.
- Non-solicitation. During the Term and for the one (1) year period thereafter, Customer shall not, directly or indirectly, individually or on behalf of any other person, firm, corporation or other entity, knowingly solicit, aid or induce (i) any employee, contractor or consultant of Instead or any of its Affiliates to leave such employment or engagement to accept employment with or render services to or with any other person or entity unaffiliated with Instead, knowingly take any action to assist any other person or entity in identifying, hiring or engaging any such employee, contractor or consultant, or hire any such employee, contractor or consultant; or (ii) any other customer of Instead or any of its Affiliates to purchase goods or services competitive with those then sold by Instead or its Affiliates from another person or entity or assist any other person or entity in identifying or soliciting any such customer.
- Non-competition. Customer acknowledges that and its Affiliates provide content and performs services of a unique nature that are irreplaceable and that, if Customer shared the Service, the Documentation, the Instead Materials or the Services Output with any competitor of Instead or its Affiliates or other third party, Instead and its Affiliates would suffer irreparable harm. Accordingly, during the Term and for the one (1) year period thereafter, Customer shall not, directly or indirectly, own, manage, operate, control, be employed or engaged by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or other entity, in whatever form, engaged in any business that competes with the business of Instead or any of its Affiliates, in any country in which Instead or its Affiliates conduct business. This provision does not prevent or restrict Customer from (a) owning not more than 2% of the total shares of all classes of stock outstanding of any publicly held entity engaged in such business or (b) rendering services to charitable organizations, as such term is defined in Section 501(c) of the Internal Revenue Code.
Customer shall indemnify and hold harmless Instead, its Affiliates and its and their Representatives from any and all liabilities, losses, damages, judgments, awards, settlement payments, penalties, fines, fees, interest, costs or expenses (including reasonable fees of attorneys, other professionals and witnesses, court costs and filing fees, and other reasonable investigation and defense expenses) incurred as a result of any claim, action or proceeding brought by a third party (an “Action”) arising out of, resulting from or alleging (i) Customer’s breach of the Agreement; (ii) use of the Service, the Instead Materials or the Service Output by Customer, its Tax Advisors or its Representatives or, in the case of Tax Advisor Customers, Customer’s clients (other than Infringement claims for which Instead is obligated to indemnify Customer under clause (b)(i) of this Section); (iii) Customer’s violation of Applicable Laws; (iv) the Customer Data; (iv) in the case of Tax Advisor Customers, any representations and warranties made by the Tax Advisor Customer to its clients concerning the Service, the Instead Materials or the Service Output.
Modifications To Service Terms
Instead may modify these Service Terms at any time and post the updated version at https://www.instead.com/legal/terms-of-service (or any successor website). If Instead modifies these Service Terms, it shall provide prior written notice (“Modification Notice”) to Customer of such modifications at least 30 days prior to the effectiveness of the modifications, which notification may be provided (without limitation) through a statement posted on the website or in Customer’s administrative console for the Account, in an email notification or in an invoice or Renewal Notice. If modifications are necessary to comply with Applicable Laws, Instead is not required to provide prior notice but shall use commercially reasonable efforts to provide prior notice when practicable.
Disclaimer; Limitation Of Liability
- Disclaimer of Warranties. Except as specifically set forth in these Service Terms and to the maximum extent permitted by Applicable Laws, (i) the Service is provided “as is” and Customer’s and its Representatives’ use of and reliance on the Service, the Instead Materials, the Service Output and any Third-Party Materials is at Customer’s sole risk and discretion; and (ii) Instead gives no warranties of any kind, whether express, implied, statutory, or otherwise, and specifically disclaims all implied warranties, including the implied warranties of merchantability and fitness for a particular purpose. Without limiting the generality of the foregoing, Instead does not represent or warrant that the Service will meet requirements or provide an expected return on investment; that the Service or the Service Output will be uninterrupted, free from bugs, errors or omissions, correct, complete, timely or otherwise reliable; that defects in the Service will be corrected; or that the Service or the Instead Technology will be free of viruses or other harmful components. No Service Output or oral or written information or advice given by Instead, its Affiliates or its or their Representative constitutes or creates a warranty. Instead makes no representations or warranties for the direct or indirect benefit of any client of a Tax Advisor Customer.
- Exclusion of Certain Damages. In no event will either party be liable to the other party for cost of cover or any indirect, special, punitive, consequential or incidental damages, including lost business or profits or lost data, even if advised of the possibility of such damages and even if such damages are reasonably foreseeable. The previous sentence will not apply to a party’s gross negligence or willful misconduct, to a party’s breach of its confidentiality obligations set forth in Section 4, to a party’s indemnification obligations, or to any infringement or misappropriation by a party of any Intellectual Property rights of the other party.
- Limitation of Liability. In no event shall a party’s aggregate liability under the Agreement exceed the amounts paid or payable to Instead under the Agreement in the 12 months preceding the Action. The previous sentence will not apply to a party’s gross negligence or willful misconduct, to a party’s indemnification obligations, to any infringement or misappropriation by a party of any Intellectual Property rights of the other party, or to Customer’s obligations to pay Fees.
- Limitation of Claims. Neither party may bring any claim relating to the Agreement more than one year after the events giving rise to the claim occurred. The previous sentence will not apply to a party’s breach of its privacy, security, and confidentiality obligations set forth in Section 4, to any infringement or misappropriation by a party of any Intellectual Property rights of the other party, or to Customer’s obligations to pay Fees.
- General. These exclusions and limitations apply even if the remedies are insufficient to cover all of the losses or damages of such party, its Affiliates or, in the case of Customer, Authorized Users. Without these limitations, the fees for the Service would be significantly higher. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some or all of the above exclusions or limitations may not apply and the parties may have additional rights.
Independent Contractors; No Professional Advice
- The parties are independent contractors, and nothing in the Agreement shall be construed as creating a joint venture, partnership, agent, employment or fiduciary relationship between Instead and Customer. The Agreement does not grant any Tax Advisor Customer the right to resell the Services, in whole or in part, to any person or entity.
- Instead is not an investment advisory service or an accounting firm and nothing provided by Instead in or in connection with the Service is intended to be used or construed as financial, accounting or legal advice. Customer expressly acknowledges that Instead provides the Service, the Instead Materials and the Service Output for informational purposes and that Customer does not rely upon Instead, the Service, the Instead Materials or the Service Output for advice regarding appropriate tax treatment. Customer is responsible for the tax policies and tax reporting positions taken by Customer on behalf of its clients. Customer acknowledges and agrees that (i) Instead is entitled to base its conclusions on and rely on the accuracy and completeness of the Customer Data and assumptions that are furnished by Customer and its Representatives, without any independent investigation or verification, and that their inaccuracy or incompleteness could materially affect Instead’s conclusions or the Service Output and (ii) Instead will not update the Service Output or advice or recommendations after provision (including, for example, updates to reflect changes or modifications to applicable law and regulations or to related judicial and administrative interpretations, or for subsequent events or transactions), unless Customer separately engages Instead to do so in writing.
Circular 230 Disclaimer. Neither the Service nor the Service Output is intended or written to be used, and cannot be used, by anyone for the purpose of avoiding any penalty that may be imposed by the IRS under the Internal Revenue Code. In the event that the Service or the Service Output is considered to be a “marketed opinion” within the meaning of the IRS guidance, then, as required by the IRS, Customer should seek advice from an independent tax advisor. The Service Output is based on current tax law and is not intended to be used on an ongoing basis without consistent changes being made by a qualified tax advisor. There is no assurance or guarantees that the recommendations contained herein will not be examined and scrutinized by the IRS or state agencies.
- Negotiation of a Dispute. In the event of any dispute, claim, question, or disagreement (“Dispute”) arising from or relating to the Agreement, the parties shall use their best efforts (acting reasonably and in good faith) to settle the Dispute. If they do not reach a solution within a period of 60 days, then, upon notice by either party to the other, such Dispute shall be finally settled by binding arbitration.
- Binding Arbitration. Any unresolved Dispute shall be settled by binding arbitration administered by the American Arbitration Association, in accordance with its commercial arbitration rules. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall be conducted by a single neutral arbitrator in the English language in Ft. Lauderdale, Florida, unless the parties agree to conduct the arbitration by telephone, video conference or written submissions. Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s rules. In all other respects, the prevailing party shall be entitled to recover its reasonable attorney’s fees, expert fees, costs and other expenses.
- No Class Action. Each party waives any right to assert any claims against the other party as a representative or member in any class or representative action.
- Governing Law. The Agreement shall be governed and controlled by the laws of the State of Florida without regard to any jurisdiction’s conflicts of law rules.
- Equitable Relief. Each party acknowledges that damages may be an inadequate remedy if the other party or its Affiliates or its or their Representatives violate the obligations under the Agreement, and each party shall have the right, in addition to any other rights it may have, to seek injunctive relief without any obligation to post any bond or similar security.
- Severability. If any provision of the Agreement is found to be invalid, illegal unenforceable, then (i) it and any related provisions will be interpreted to best accomplish the unenforceable provision's essential purpose; and (ii) the parties shall negotiate reasonably and in good faith to modify the Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible. All other provisions of the Agreement will remain in full force and effect.
- Entire Agreement. The Agreement constitutes the entire agreement between the parties with respect to the matter contained herein and supersedes all prior and contemporaneous agreements and understandings of the parties with respect thereto. There are no agreements, representations or warranties of any kind except as expressly set forth herein or referenced within the Agreement. Customer’s standard terms of purchase (including purchase order terms or click-through terms), if any, are inapplicable.
- Order of Precedence. Except to the extent expressly specified otherwise, if there is any conflict between the order for the Services, these Service Terms and any addendum signed by the parties, the following order of precedence applies: (i) first, any addendum between the parties; (ii) second, these Service Terms; and (iii) third, the order for the Services.
- Waiver. No waiver of any provision of the Agreement will be effective unless it is in writing and signed by the waiving party, and no such waiver will constitute a waiver of any other provision or of the same provision on another occasion.
- No Third-Party Rights. The Agreement is made for the sole benefit of the parties and their respective successors and permitted assigns. Nothing in the Agreement, express or implied, is intended to or shall confer upon any other person or entity (including any client of Customer) any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of the Agreement.
- Assignment. Customer may not assign its rights, duties, or obligations under the Agreement without Instead’s prior written consent; provided, however, that Customer may assign the Agreement without consent to an acquirer of all or substantially all, or control of all or substantially all, of the capital stock, assets or business of Customer (whether as a result of a merger, acquisition, sale of assets, change of control, or operation of law) or to an Affiliate of Customer, provided that (i) Customer must provide notice to Instead of the assignment, (ii) the assignee must agree in writing to be bound by the Agreement, and (iii) Instead may terminate the Agreement if Customer assigns the Agreement to an entity whose business competes with the business of Instead or any of its Affiliates. Any purported assignment or delegation in violation of this Section will be null and void. No assignment will relieve the assigning party of any of its obligations hereunder that accrued before the effective date of the assignment.
- Successors and Assigns. The Agreement is binding upon and inures to the benefit of the parties and their respective successors and permitted assigns.
- Notices: Instead shall communicate announcements of general interest by email or by posting on its website or social media accounts or in Customer’s administrative console for the Account. All legal notices and consents under the Agreement shall be given in writing and shall be sent by and deemed to have been sufficiently given or served for all purposes as of the date it is sent by e-mail, or delivered by hand, overnight courier, or certified mail to any of the following addresses (or addresses subsequently updated by the parties):
- Headings. The section headings contained herein are for convenience only and shall not in any way affect the interpretation or enforceability of any provision of the Agreement.
- Force Majeure. Except for Customer’s payment obligations, a party shall be excused from performance and shall not be liable for any delay or failure to perform caused by war, terrorism, sabotage, insurrection, riot or other civil unrest, labor disturbance or shortage, government action, explosion, hurricane, earthquake, flood or other act of God, epidemic or widespread illness, electrical, telecommunications, or other utility failures, denial of service attacks or other circumstances beyond such party's reasonable control. A party seeking relief from performance under this Section must (i) provide notice of such circumstances to the other party as soon as practicable, (ii) use commercially reasonable efforts to avoid or mitigate such circumstances, and (iii) resume performance as soon as practicable upon the cessation of the circumstances. If the failure or delay continues for more than 30 days, either party may, in its discretion, terminate the affected Service. Such termination will not result in any liability by either party.
- Export Regulation. Customer shall comply with all Applicable Laws that prohibit or restrict the export or re-export of the Service, the Service Output or any Customer Data outside the US, including completing all required undertakings and obtaining any necessary export license or other governmental approval
- Publicity. Unless a party has provided written instructions to the contrary to the other party, either party may include the name or logo of the other party (or its Affiliate, if applicable) in lists of customers or vendors. Except as otherwise provided in Section 3(c) of these Service Terms, neither party shall issue or release any press release or other announcement relating to the Agreement without the consent of the other party.
- Use of Instead Marks. If Customer is a Tax Advisor Customer that subscribes to Instead Pro, Tax Advisor Customer may state publicly that it uses Instead Pro and, in connection therewith, Instead grants Tax Advisor Customer a limited, revocable, non-exclusive, non-transferable right and license to use and display Instead’s name and relevant trademarks and service marks (the “Instead Marks”) in accordance with Instead’s then-current branding guidelines made available on the Instead.com website or otherwise provided to Tax Advisor Customer. All goodwill developed from a Customer’s use of the Instead brand will accrue solely to the benefit of Instead.
- Referral Fees. Instead may pay referral fees to tax advisors or other persons or entities who invite their clients to the Service.