1040.com Terms of Use

Last Updated 7/01/2024

These Terms of use apply to 1040.com, its subdomains (our “Site”) and the 1040.com Online Tax Preparation service and associated services (the “Service”) to prepare your tax return(s) and/or a federal tax extension of time to file a return (“extension”). These Terms of Use (the “Agreement”) is a contract between you and Drake Software, LLC (“we”, “us”, “our” and “Drake”) that describes the terms and conditions applicable to your access and use of the Site and Service. The term “Service” also includes any individual state tax returns.

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SERVICE AS THIS AGREEMENT AFFECTS YOUR LEGAL RIGHTS AND GOVERNS HOW CLAIMS THAT YOU AND WE MAY HAVE AGAINST EACH OTHER ARE RESOLVED.  If you do not agree to the terms of this Agreement, you must not access or use the Site and Service. This Agreement contains a class action waiver provision that requires the parties to resolve all disputes on an individual basis and limits the remedies available to you in the event of certain disputes relating to the operation or use of the Service (Section 15).  Further, as outlined in Section 15 of this Agreement, unless you opt out of arbitration within 30 days of the date you agree to this Agreement, you agree that any dispute that cannot be informally resolved between us will be resolved by binding, individual arbitration and you waive your right to participate in a class action lawsuit or class-wide arbitration. 

The Site and Service are offered to users who are 18 years of age or older (or have reached the age of majority in the jurisdiction where they reside) and reside in the United States or any of its territories or possessions. By using the Service, you represent and warrant that you are of legal age to form a binding contract with Drake and meet all of the foregoing eligibility requirements. If you do not meet these requirements, you must not access or use the Site or Service.

IMPORTANT: We may change the usage fees for the Service and any related services from time to time. Your fees will be determined based on the then-current prices for the Service at the time you submit payment for your tax return.

1. Your Right to Use the Service

You may use the Service on one or more computers through the Internet to prepare a single valid federal tax return and/or extension, and for as many state returns as needed and, after proper registration and any applicable payment, to file electronically and/or print such return(s) and/or extension. Pricing for extension preparation is separate from tax return preparation, and the purchase of one in no way is included in or counts toward the purchase of the other unless explicitly offered as such as part of a special limited offer.

The terms “you”, “your” or “user” are synonymous, and refer to the person using the Service. A “registered user” is a user from whom we have received the information necessary to permit such person to print or electronically file a tax return or extension prepared using the Service.

You must be a registered user:

  1. to be eligible for the guarantees described below; and
  2. in order for us to save your tax data for your future access.

You agree that we and our service providers are not acting as your agent or fiduciary in connection with your use of the Service or any third-party services.

We do not provide tax advice or any other professional services or advice in connection with your use of the Service. Consult with a competent professional if you believe you need tax, financial, accounting, legal or any other professional services.

2. Acceptable Use

As a condition of your use of our Site, you warrant to Drake that you will not use our Site for any purpose that is unlawful or prohibited by this Agreement. You may not use our Site in any manner which could damage, disable, overburden, or impair our Site or interfere with any other party's use and enjoyment of our Site. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through our Site. Drake reserves the right to suspend or cancel your use of the Service if, in our opinion, you have violated any provision of this Agreement, including this Section 2. You agree to use the Service and our Site only in accordance with this Agreement and not to use or allow others to use the Service or our Site to:

  1. attempt to access any of our other systems, programs or data that are not made available for public use;
  2. prepare tax returns, extensions, schedules or worksheets on a professional or commercial basis (i.e., for a preparer’s or other fee);
  3. copy, reproduce, republish, upload, post, transmit, resell or distribute in any way the material from this website;
  4. attempt any actions that would prevent the use of the Service by the public; or
  5. engage in or encourage others to engage in illegal or fraudulent activity, including, but not limited to, filing fraudulent tax returns, misrepresenting the identity of an individual, misrepresenting the presence of a “Paid Preparer” as defined by the Internal Revenue Service, or any other illegal or fraudulent activities which violate applicable laws.

Drake will use commercially reasonable techniques and procedures to manage use of the Service, which may include limiting the number of transmissions for an IP address and other procedures designed to ensure proper and non-malicious use of the Service.

If Drake determines, in its sole discretion, that you have violated any provisions of this Agreement, your use of the Service may be suspended without recourse.

3. Use of Communication Services

Our Site may contain bulletin board services, chat areas, news groups, forums, communities, personal web pages, calendars, and/or other message or communication facilities designed to enable you to communicate with the public at large or with a group (collectively, “Communication Services”), you agree to use the Communication Services only to post, send and receive messages and material that are proper and related to the particular Communication Service. By way of example, and not as a limitation, you agree that when using a Communication Services, you will not:

  • Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
  • Publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful topic, name, material or information.
  • Upload files that contain software or other material protected by intellectual property laws (or by rights of privacy of publicity) unless you own or control the rights thereto or have received all necessary consents.
  • Upload files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another's computer.
  • Advertise or offer to sell or buy any goods or services for any business purpose, unless such Communication Service specifically allows such messages.
  • Conduct or forward surveys, contests, pyramid schemes or chain letters.
  • Download any file posted by another user of a Communication Service that you know, or reasonably should know, cannot be legally distributed in such manner.
  • Falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded.
  • Restrict or inhibit any other user from using and enjoying the Communication Services.
  • Violate any code of conduct or other guidelines which may be applicable for any particular Communication Service.
  • Harvest or otherwise collect information about others, including e-mail addresses, without their consent.
  • Violate any applicable laws or regulations.

Drake has no obligation to monitor the Communication Services. However, Drake reserves the right to review materials posted to a Communication Service and to remove any materials in its sole discretion. Drake reserves the right to terminate your access to any or all of the Communication Services at any time without notice for any reason whatsoever.

Drake reserves the right at all times to disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Drake's sole discretion. Always use caution when giving out any personally identifying information about yourself or your children in any Communication Service. Drake does not control or endorse the content, messages or information found in any Communication

Service and, therefore, Drake specifically disclaims any liability with regard to the Communication Services and any actions resulting from your participation in any Communication Service. Managers and hosts are not authorized Drake spokespersons, and their views do not necessarily reflect those of Drake.

Materials uploaded to a Communication Service may be subject to posted limitations on usage, reproduction and/or dissemination. You are responsible for adhering to such limitations if you download the materials.

4. Materials Provided to Drake or Posted at any Site

Drake does not claim ownership of the materials you provide to Drake (including feedback and suggestions) or post, upload, input or submit to any Site or its associated services (collectively “Submissions”). However, by posting, uploading, inputting, providing or submitting your Submission you are granting Drake, its affiliated companies and necessary sublicensees permission to use your Submission in connection with the operation of their Internet businesses including, without limitation, the rights to: copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate and reformat your Submission; and to publish your name in connection with your Submission.

No compensation will be paid with respect to the use of your Submission, as provided herein. Drake is under no obligation to post or use any Submission you may provide and may remove any Submission at any time in Drake's sole discretion.

By posting, uploading, inputting, providing or submitting your Submission you warrant and represent that you own or otherwise control all of the rights to your Submission as described in this Section including, without limitation, all the rights necessary for you to provide, post, upload, input or submit the Submissions.

5. 1040.com Guarantees

Drake offers the following guarantees with respect to the Service:

  • 100% Accurate Calculations Guarantee
  • Maximum Refund Guarantee
  • Easy-to-Use Guarantee
  • One Price Guarantee
100% Accurate Calculations Guarantee

We work diligently to ensure the accuracy of the calculations on every form prepared using the Service. If you are a registered user and you pay an IRS or state penalty and/or interest solely because of a calculation error on a form prepared using the Service, and not as a result of, among other things, your failure to enter all required information accurately, your failure to review any data transferred, converted, retrieved or imported from another source into the Service, such as form W-2 wage data, for accuracy and completeness, omission of information, inclusion of inaccurate information on your tax return or extension, misclassification of information on the tax return or extension, or failure to file an amended return to avoid or reduce an applicable penalty/interest after we and our service providers announced updates or corrections to the Service in time for you to file an amended return, then we will reimburse you in the amount of the IRS or state penalty and/or interest paid by you to the IRS or state. In this regard, you are responsible for keeping us apprised promptly of any change in your email address, mailing address and/or phone number so that you can be notified of such updates or corrections. To receive such reimbursement, you must follow the notification requirements below.

If you believe such a calculation error occurred, you must notify us in writing at Drake Software, c/o 1040.com Tax Service, 235 East Palmer Street, Franklin NC 28734, as soon as you learn of the mistake (and in no event later than 30 days from the date the penalty or interest is assessed). You must include (i) a copy of the IRS/state notice, (ii) evidence of payment of the specified penalty and/or interest, (iii) a copy of the applicable hardcopy tax return, and (iv) your Service username and email address you used to set up your account. You are responsible for paying any additional tax liability you may owe and providing any other information we reasonably request. UNLESS OTHERWISE SPECIFICALLY ALLOWED BY LAW, THE FOREGOING SETS FORTH YOUR SOLE AND EXCLUSIVE REMEDY AGAINST DRAKE AND OUR REPRESENTATIVES (as defined below) WITH RESPECT TO ANY CLAIMS RELATING TO THIS GUARANTEE, ALLEGED COMPUTATIONAL ERRORS OR INACCURACIES IN THE PERFORMANCE OF THE SERVICE.

Maximum Refund Guarantee

If you are a registered user of the Service and you receive a larger refund amount or pay a smaller tax due amount on your federal and/or state tax return using an online tax preparation software other than the Service, then we will refund to you the applicable federal and/or state purchase price paid by you for the Service. All other fees are excluded, including tax extension and e-Collect.

To qualify, the larger refund or smaller tax due cannot be attributed to variations in data you provided for tax preparation or for positions taken by you or another online tax preparation software that are contrary to the law. If you receive a larger refund amount or pay a smaller tax due using another online tax preparation software, you must notify us in writing at Drake Software, c/o 1040.com Tax Service, 235 East Palmer Street, Franklin NC 28734, as soon as you learn of the difference (and in no event later than 30 days from the date you filed your tax return using the Service or October 31of the applicable tax year, if earlier). You must include (i) a claim summary describing the conditions under which you are submitting the claim, (ii) your Service username and email address you used to set up your account, (iii) evidence of your proof of payment for another online tax preparation software, (iv) evidence of your refund or tax due amount using the Service, (v) and evidence of your refund or tax due amount using another online tax preparation software. To validate your claim, and as a precondition of refund payment, we may require additional supporting information, such as copies of your printed tax returns. UNLESS OTHERWISE SPECIFICALLY ALLOWED BY LAW, THE FOREGOING SETS FORTH YOUR SOLE AND EXCLUSIVE REMEDY AGAINST DRAKE AND OUR SERVICE PROVIDERS WITH RESPECT TO ANY CLAIMS RELATING TO THIS GUARANTEE, ALLEGED COMPUTATIONAL ERRORS OR INACCURACIES IN THE PERFORMANCE OF THE SERVICE.

Easy to Use Guarantee

Our software is guaranteed to be simple and easy to use. If you are a registered user of the Service, there is no charge until you are satisfied with your completed return and are ready to file. If you do not find the Service to be simple and easy to use, you can discontinue use at any time prior to paying for your return, and we guarantee you will not be charged. Your sole and exclusive remedy regarding this guarantee is to

discontinue use of the Service prior to filling out the billing pages, making payment and filing your tax return. UNLESS OTHERWISE SPECIFICALLY ALLOWED BY LAW, THE FOREGOING SETS FORTH YOUR SOLE AND EXCLUSIVE REMEDY AGAINST DRAKE AND OUR SERVICE PROVIDERS WITH RESPECT TO ANY CLAIMS RELATING TO THIS GUARANTEE.

One Price Guarantee

Our pricing model guarantees that you will pay our published retail price upon check out plus any applicable sales tax for your federal return and state tax return(s). The published retail price includes preparation and filing of your federal tax return and state tax return(s); it does not include any optional payment methods or refund disbursement methods, such as E-collect, or additional optional products and services that may be offered, such as Protection Plus.

If you believe you were not charged our published retail price plus any applicable sales tax for your completed federal tax return and state tax return(s), you must notify us in writing at Drake, c/o Online Tax Preparation, 235 East Palmer Street, Franklin NC USA 28734, as soon as possible (and in no event later than 30 days from the date you paid for your tax return or October 31 of the applicable tax year, if earlier). You must include (i) a claim summary describing the conditions under which you are submitting the claim, (ii) your Service username and email address you used to set up your account, (iii) evidence of your proof of payment, and (iv) a copy of the applicable hardcopy tax return. To validate your claim, and as a precondition of refund payment, we may require additional supporting information. If your claim is validated, we will refund you the difference between what you were charged and what you should have been charged. UNLESS OTHERWISE SPECIFICALLY ALLOWED BY LAW, THE FOREGOING SETS FORTH YOUR SOLE AND EXCLUSIVE REMEDY AGAINST DRAKE AND OUR SERVICE PROVIDERS WITH RESPECT TO ANY CLAIMS RELATING TO THIS GUARANTEE.

6. Reservation of Rights and Ownership

We reserve all rights not expressly granted to you in this Agreement. The Service is protected by copyright, trademark, patent, trade secret and other intellectual property laws. We own the title, copyright and all other intellectual property rights in the Service. No right, title, or interest in or to the Service or any content on the Service is transferred to you. Any use of the Service not expressly permitted herein is a breach of this Agreement and may violate copyright, trademark and other laws. You shall not decompile, disassemble, or otherwise reverse engineer the Service.

7. Electronic Filing Services and Support
Electronic Filing Services

If you choose to file your tax return(s) or extension electronically, the tax return(s) or extension will be converted to and stored in a standardized format, and then transmitted to the applicable federal and/or state taxing authority. You are responsible for verifying the status of your tax return or extension to confirm that it has been received and accepted by the applicable taxing authority and, if necessary, for filing it manually in the event that the taxing authority rejects your electronically filed tax return or extension (e.g., taxpayer name and SSN do not match). You agree to review your tax return or extension for indications of obvious errors before electronically filing or mailing it. Except to the extent required by applicable law, we may, but have no obligation to, store, maintain or provide to you any information you provide to us and/or our service providers.

The Internal Revenue Service (“IRS”) requires us to notify it, in connection with the electronic filing of

your tax return or extension, of the Internet Protocol (“IP”) address of the computer from which the tax return originated and whether the email address of the person electronically filing the tax return or extension has been collected. By using the Service to prepare and submit your tax return or extension, you consent to the disclosure to the IRS and any other tax or revenue authority of all information relating to your use of the Service.

Support

We and our service providers may use a variety of methods (e.g., on-screen help, email, fax, web chat and phone) to provide technical support and customer service in connection with the Service and other related services. The terms and conditions governing the offering of this support are subject to change as announced by us from time to time. After the individual extension filing deadline date of each applicable tax year, tax returns can no longer be submitted electronically through the Service, except to correct tax returns originally filed and rejected before that date in accordance with the IRS perfection period. The IRS normally allows a perfection period, typically up to five (5) days after the deadline date, to correct and resubmit tax returns electronically. Tax returns may not be corrected and e-filed timely after the IRS post-deadline perfection period. Soon after the perfection period ends, the Service will be made unavailable. Registered users may continue to access their account outside of scheduled maintenance periods, but will not have access to the Service.

We and our service providers may provide you with a mechanism to provide feedback, suggestions and ideas, if you choose, about the Service (“Feedback”). You agree that we and our service providers may, in our sole discretion, use the Feedback you provide in any way, including in future modifications of the Service, multimedia works and/or advertising, and promotional materials relating thereto without additional consideration. You hereby grant us and our service providers a perpetual, worldwide, fully transferable, non-revocable, royalty-free license to use, modify, create derivative works from, distribute and display any information you provide to us and our service providers in the Feedback, including without limitation your full first name, last name initial, and city and state of residence.

You are responsible for providing, at your expense, any access to the Internet and any required equipment to use the Service. Further, we and our service providers may at any time change or discontinue any aspect, availability or feature of the Service.

We and our service providers may access and use any tax return and other information provided by you to perform the Service and any related services you purchase and, if necessary, to access such information to obtain contact information in order to provide notifications relating to the Service and related services to you.

8. Username and Password Security

You are the only person authorized to use your username and password and you are responsible for maintaining the confidentiality of your username and password. You shall not permit or allow other persons or entities to have access to or use your username and password. You are responsible for the use of the Service under your username. The Service provides an account recovery feature in the event you forget your username, password or the email address you used to set up your account. In the event that the account recovery feature is not successful, you must contact our support team at support@1040.com. You must remember your username and password to electronically transfer your tax return information into next year’s tax return.

We do not purge the user information database. If you wish to be removed and no longer receive email correspondence about our Service, you may submit a request to this effect and we will update your record to be excluded from any automated processes, as well as to disallow login rights for your username. To submit such request, sign in to the Service and click the Help link in the upper right corner of the screen if you are on a desktop computer, or select Help from the main menu if you are on a mobile device.

9. Privacy of Personal and Tax Return Information

 

The Service resides under a DigiCert certified Secure Socket Layer (SSL) URL and all subsequent web pages are verified through the secure connection of this SSL.

Drake’s target users are in the United States. We do not intend to offer goods or services to individuals in the United Kingdom, Switzerland or the European Economic Area (EEA). If you are located in the EEA or anywhere outside of the United States, be aware that information you provide to us or that we obtain as a result of your use of the Service may be processed in, transferred to, and stored in the United States and will be subject to United States law. The privacy and data protection laws of the United States may be different from the laws of your country of residence.

With the implementation of the General Data Protection Regulation (GDPR) and other country-specific privacy and data protection laws outside of the United States, we are taking further steps to ensure that any potential customers understand the Drake does not intend to sell its goods or services to persons inside the United Kingdom, Switzerland, or the EEA. These include limiting access to certain web-based services when attempting to access from within the United Kingdom, Switzerland and EEA borders.

To the extent that the California Consumer Privacy Act and California Privacy Rights Act, as amended (Cal. Civ. Code §§ 1798.100 et seq.) (CCPA) is applicable to you, you agree that Drake qualifies as a “Business,” that data is shared with “Service Providers” for a “Business purpose” (as defined under Cal. Civ. Code §§ 1798.140) to deliver the Service and other services and products to you, and that such sharing of data is done so in compliance with the CCPA. For more information on how we use your data, please see our Privacy Notice. 

You can view and print a copy of our Privacy Notice here. You agree to the terms of the Privacy Notice, and any changes published by Drake. You agree that Drake may use and maintain your data in accordance with the Privacy Notice. You give Drake permission to use non-identifiable information you enter or upload in the Service with that of other users of the Service and/or other Drake services. For example, this means that Drake may use your and other users’ non-identifiable, aggregated data for business purposes, including to improve the Service and design marketing promotions.

     

10. Third Party Offerings

 

 

THE SERVICES AND CONTENT MAY CONTAIN LINKS TO, OR INFORMATION REGARDING, THIRD PARTY WEBSITES, PRODUCTS, OR SERVICES (COLLECTIVELY, "THIRD PARTY OFFERINGS"). DRAKE OFFERS SUCH LINKS AND INFORMATION FOR YOUR CONVENIENCE, BUT DOES NOT CONTROL OR ENDORSE ANY THIRD PARTY OFFERINGS. YOU AGREE THAT DRAKE IS NOT LIABLE FOR THE CONTENT, ACCURACY, FUNCTIONALITY, OR ANY OTHER ASPECT OF ANY THIRD-PARTY OFFERINGS AND THAT DRAKE IS NOT RESPONSIBLE FOR THE ACTS, OMISSIONS, POLICIES, OR PROCEDURES OF ANY SUCH THIRD PARTY. ANY TRANSACTIONS THAT YOU CHOOSE TO ENTER INTO WITH ANY THIRD PARTY IS BETWEEN YOU AND THE APPLICABLE THIRD PARTY, AND DRAKE WILL NOT BE A PARTY TO OR HAVE ANY LIABILITY WITH REGARDS TO SUCH TRANSACTIONS. To the fullest extent permitted by applicable law, you release Drake from responsibility, liability, claims, demands, and/or damages of every kind and nature, in any way arising out of or related to the operation, or your use, of the Service that in any way arise out of or related to the acts or omissions of third parties ("Third Party Disputes") except as expressly provided in Section 5, 1040.COM Guarantees.  IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE ANY RIGHTS YOU MAY HAVE ARISING OUT OF THESE TERMS UNDER CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY." YOU ALSO WAIVE ANY RIGHTS YOU MAY HAVE WITH RESPECT TO THIRD PARTY DISPUTES UNDER ANY OTHER STATUTE OR COMMON LAW PRINCIPLES THAT WOULD OTHERWISE LIMIT THE COVERAGE OF THIS RELEASE TO INCLUDE ONLY THOSE CLAIMS WHICH YOU MAY KNOW OR SUSPECT TO EXIST IN YOUR FAVOR AT THE TIME OF AGREEING TO THIS RELEASE.

11. Payment Prior to Filing

 

 

You may use the Service without charge up to the point you decide to print or electronically file your return or extension. You will have the opportunity to preview your federal and state forms prior to filing your return. This preview includes watermarks on the forms and must not be used to file a return. You will be required to pay for the Service before viewing your return without watermarks, printing your return, or electronically filing your return. For an extension, no free preview is provided, and you are required to pay for the Service before viewing, printing or electronically filing your extension. Your payment reflects your satisfaction with the results of the Service.

12. DISCLAIMER OF WARRANTIES

 

 

EXCEPT FOR THE LIMITED GUARANTEES ABOVE, THE SITE AND SERVICE IS PROVIDED “AS-IS” AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE, OUR AFFILIATES, AND OUR LICENSORS, PARTICIPATING FINANCIAL INSTITUTIONS, THIRD-PARTY CONTENT OR SERVICE PROVIDERS, DISTRIBUTORS, DEALERS, SUPPLIERS, EMPLOYEES, AGENTS, OFFICERS AND DIRECTORS (COLLECTIVELY, “REPRESENTATIVES”) DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SITE AND THE SERVICE, INCLUDING ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, AND NON-INFRINGEMENT. WE DO NOT WARRANT THAT THE SITE AND THE SERVICE ARE SECURE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, OR OTHER PROGRAM LIMITATIONS. SOME STATES DO NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. IN THAT EVENT, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO 30 DAYS FROM THE DATE YOU PAY FOR THE SERVICE, AS APPLICABLE. HOWEVER, SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. NO REPRESENTATIVE OF DRAKE IS AUTHORIZED TO MAKE ANY STATEMENT THAT ADDS TO OR AMENDS ANY OF THE WARRANTIES OR LIMITATIONS CONTAINED IN THIS AGREEMENT. ANY UPDATES PROVIDED BY DRAKE OR ITS REPRESENTATIVES SHALL BE SUBJECT TO THIS AGREEMENT.

DRAKE DOES NOT PROVIDE TAX ADVICE. ANY INFORMATION CONTAINED ON THE SITE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY, AND YOU ARE RESPONSIBLE FOR CONSULTING WITH YOUR OWN PROFESSIONAL TAX ADVISORS CONCERNING YOUR SPECIFIC TAX CIRCUMSTANCES. DRAKE DISCLAIMS ANY RESPONSIBILITY FOR THE VALIDITY, ACCURACY, OR ADEQUACY OF ANY POSITIONS TAKEN BY USERS IN THEIR TAX RETURNS. ALL WARRANTIES OR GUARANTEES GIVEN OR MADE BY DRAKE WITH RESPECT TO THE SERVICES (1) ARE FOR THE BENEFIT OF THE REGISTERED USER OF THE SERVICES ONLY AND ARE NOT TRANSFERABLE, AND (2) SHALL BE NULL AND VOID IF YOU BREACH ANY TERMS OR CONDITIONS OF THIS AGREEMENT.

13. LIMITATION OF LIABILITY AND DAMAGES

 

 

YOU AGREE NOT TO HOLD US OR OUR REPRESENTATIVES LIABLE FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF YOUR PARTICIPATION IN THIRD-PARTY SERVICES. ADDITIONALLY, EXCEPT FOR THE LIMITED GUARANTEES ABOVE, YOUR EXCLUSIVE REMEDY AND OUR ENTIRE LIABILITY AND OUR REPRESENTATIVES’ ENTIRE LIABILITY FOR ANY REASON SHALL BE LIMITED TO THE AMOUNT PAID BY YOU TO US AND OUR SERVICE PROVIDERS FOR THE APPLICABLE SERVICE.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE AND OUR REPRESENTATIVES ARE NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOSS OF BUSINESS, TELECOMMUNICATION FAILURES, LOSS, CORRUPTION, SECURITY OR THEFT OF DATA, LOSS OF PROFITS OR INVESTMENT, TAX POSITIONS TAKEN BY YOU, INABILITY TO FILE YOUR RETURN, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY OR OTHERWISE, EVEN IF WE OR OUR REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE. IN NO EVENT DO WE OR OUR REPRESENTATIVES ASSUME ANY LIABILITY TO ANY PARTY OTHER THAN YOU ARISING OUT OF YOUR USE OR INABILITY TO USE THE SITE AND/OR THE SERVICE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN US AND YOU. WE WOULD NOT BE ABLE TO PROVIDE THE SERVICE WITHOUT SUCH LIMITATIONS.

THE LIMITATIONS SET FORTH IN THIS SECTION WILL NOT LIMIT OR EXCLUDE DRAKE OR THE REPRESENTATIVES' LIABILITY FOR PRODUCT LIABILITY CLAIMS THAT ARISE IN CONNECTION WITH THE ACCESS OR USE OF THE SERVICES OR FOR DRAKE'S OR THE REPRESENTATIVES' GROSS NEGLIGENCE, FRAUD, OR INTENTIONAL, WILLFUL, MALICIOUS, OR RECKLESS MISCONDUCT.

     

14. Termination

This Agreement may be terminated by us immediately and without notice if you fail to comply with any term or condition of this Agreement. Upon such termination, you must immediately cease using the Service.

15. Dispute Resolution; Informal Resolution; Class Waiver; Binding Arbitration; Coordinated Disputes & Termination of Rights 

PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT LIMITS CERTAIN LEGAL RIGHTS, INCLUDING THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS, COLLECTIVE, OR REPRESENTATIVE CLAIM, DISPUTE OR ACTION, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF.  Other rights that we or you would have in court, such as an appellate review, also may not be available in the arbitration process described within this Section. 

Informal Resolution

 

 

In the unlikely event that a disagreement arises between you and Drake regarding any claim or controversy at law or equity arising out of, relating to, or connected in any way with the Service (collectively, "Dispute"), prior to initiating any legal action, you must first contact us directly by email at legal@drakesoftware.com.  You must describe the nature of the Dispute, the basis for your Dispute and the resolution you are seeking.  

You agree that the term "Dispute" in this Agreement will have the broadest meaning possible. This Agreement also cover any Dispute between you and any officer, director, board member, agent, employee, affiliate of Drake, or third party if Drake could be liable, directly or indirectly, for such Dispute.

During the 60 days from the date you first contacted us, you and we agree to engage in good faith efforts to resolve the Dispute and you will not initiate any legal action during this period. You and we agree to toll any statutes of limitations that may apply, along with any filing deadlines during this 60 day time period.  

Class Waiver

 

 

YOU AND DRAKE AGREE THAT ANY DISPUTE ARISING OUT OF OR RELATED TO THIS AGREEMENT OR OUR SERVICE IS PERSONAL TO YOU AND DRAKE AND THAT ANY DISPUTE WILL BE RESOLVED SOLELY THROUGH INDIVIDUAL ARBITRATION AND WILL NOT BE BROUGHT AS A CLASS ARBITRATION, CLASS ACTION OR ANY OTHER TYPE OF REPRESENTATIVE PROCEEDING, WHETHER WITHIN OR OUTSIDE OF ARBITRATION. 

Binding Arbitration

 

 

If the Dispute is not resolved within the 60 day informal resolution period (and the parties do not agree to extend the period), you and we agree that the Dispute will be resolved entirely through binding individual arbitration in the state of your residence or as we and you otherwise agree in writing. If the parties have more than one Dispute between them, you and we agree to assert all such Disputes in a single arbitration so they may be resolved at the same time or they will be deemed waived. 

We agree to meet and confer to select a neutral arbitrator.  If we are unable to agree on an arbitrator, you or we may petition the state or federal courts sitting in Macon County, North Carolina to appoint an arbitrator from the arbitrators that you and we propose.  Regardless of the arbitrator or arbitration provider selected, the arbitration shall be administered pursuant to JAMS Streamlined Arbitration Rules and procedures or other comparable rules to which you and we agree.  

WITH ARBITRATION (i) THERE IS NO JUDGE OR JURY, (ii) THE ARBITRATION PROCEEDINGS AND ARBITRATION OUTCOME ARE SUBJECT TO CERTAIN CONFIDENTIALITY RULES, AND (iii) JUDICIAL REVIEW OF THE ARBITRATION OUTCOME IS LIMITED.  The arbitrator’s award shall be final and binding and may be entered as a judgment in any court of competent jurisdiction.

You and Drake agree that the terms of this Agreement affect interstate commerce and that the enforceability of this Section will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the "FAA"), to the maximum extent permitted by applicable law. As limited by the FAA, this Agreement and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Dispute and to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by this Agreement. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. You and Drake agree that for any arbitration you initiate, you will pay the filing fee and Drake will pay the remaining arbitration provider’s fees and costs. For any arbitration initiated by Drake, Drake will pay all of the arbitration provider’s fees and costs. You and Drake agree that the state or federal courts of the State of North Carolina and the United States sitting in Macon County, North Carolina have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.

Notwithstanding the forgoing, this Agreement shall not require arbitration of the following Disputes (i) qualifying individual Disputes in small claims court in the county of your or Drake’s billing address. and/or (ii) injunctive or other equitable relief in a court of competent jurisdiction in North Carolina for the alleged unlawful use of intellectual property.

Coordinated Disputes

 

 

You and we agree that the following procedures apply for Coordinated Disputes.  If twenty-five (25) or more similar Disputes are asserted against Drake at or around the same time by the same or coordinated counsel or are otherwise consistent or coordinated ("Coordinated Disputes"), and your Dispute is one such Dispute, you understand and agree that the resolution of your Dispute might be delayed.  Further, you agree that Drake, in its sole discretion, may elect to opt the Disputes out of arbitration and require the Disputes to proceed in a court of competent jurisdiction in Macon County, North Carolina consistent with the remainder of this Agreement, including the class and collective action waiver.  Notwithstanding this option available to Drake, should the Disputes proceed in arbitration, batching procedures to reduce the costs and gain efficiencies associated with litigating multiple cases shall be implemented. Twenty-six (26) Disputes shall be selected to proceed to individual arbitration proceedings as part of a first batching process, thirteen (13) of which will be selected by the claimants and their coordinated counsel and thirteen (13) of which will be selected by Drake. The remaining Disputes shall not be filed or deemed filed in arbitration nor shall any arbitration provider fees be assessed in connection with those Disputes until they are selected to proceed to individual arbitration proceedings as part of the staged process described herein.  

If the parties are unable to resolve the remaining Disputes after the conclusion of the initial twenty-six proceedings, the parties shall participate in a global mediation session before a retired state or federal court judge. If the parties are unable to resolve the remaining Disputes through mediation at this time, then twenty-six (26) Disputes shall be selected to proceed to individual arbitration proceedings as part of a second batching process, thirteen (13) of which will be selected by the claimants and thirteen (13) of which will be selected by Drake. (If there are fewer than twenty-six (26) Disputes remaining, all shall proceed.) The remaining Disputes shall not be filed or deemed filed in arbitration nor shall any arbitration provider’s fees be assessed in connection with those Disputes until they are selected to proceed to individual arbitration proceedings as part of the staged process described herein. In any batching process, a single arbitrator shall preside over each proceeding, and only four proceedings may be assigned to each arbitrator unless the parties agree otherwise. If the parties are unable to resolve the remaining Disputes after the conclusion of the second batch of twenty-six (26) proceedings, the parties shall participate in another global mediation session before a retired state or federal court judge. If the parties are unable to resolve the remaining Disputes in mediation at this time, this staged process shall continue with no more than twenty-six (26) Disputes proceeding at any time in a staged order that is selected randomly or by the arbitration provider, until all the Coordinated Disputes, including your Dispute, are adjudicated or otherwise resolved. At any time during these proceedings, we agree to participate in a global mediation session should your counsel request it in an effort to resolve all remaining Disputes. 

Any applicable statute of limitations on your Disputes and filing fee deadlines shall be tolled for Coordinated Disputes from the time any Coordinated Dispute is selected for the first set of batching proceedings until the time your Dispute is selected to proceed in arbitration, withdrawn, or otherwise resolved. A court of competent jurisdiction shall have authority to enforce this Section regarding Coordinated Disputes and, if necessary, to enjoin the filing or prosecution of arbitration demands against Drake. Should a court of competent jurisdiction decline to enforce these Coordinated Dispute procedures, you and we agree that your and our counsel shall engage in good faith and with the assistance of a process arbitrator to devise and implement procedures that ensure that arbitration remains efficient and cost-effective for all parties. Either party may engage with the selected arbitration provider to address reductions in arbitration fees. If this Section regarding Coordinated Disputes is deemed unenforceable as to a particular claimant or batch, then it shall be severed as to that claimant or batch, and those parties shall arbitrate in individual proceedings in accordance with this Section.

Termination of Rights 

 

 

ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT OR OUR SERVICE OR CONTENT MUST BE FILED WITHIN ONE YEAR AFTER SUCH CLAIM AROSE; OTHERWISE, THE CLAIM IS PERMANENTLY BARRED, WHICH MEANS THAT YOU AND DRAKE WILL NOT HAVE THE RIGHT TO ASSERT THE CLAIM.

You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Section by sending an email to arbitration@drakesoftware.com. In order to be effective, the opt-out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with the following Section 16 (Jurisdiction and Venue).

 

16. Jurisdiction and Venue

THE VALIDITY AND PERFORMANCE OF THIS AGREEMENT SHALL BE GOVERNED BY NORTH CAROLINA LAW (WITHOUT REFERENCE TO CHOICE OF LAW PRINCIPLES), AND APPLICABLE FEDERAL LAW. ANY DISPUTE BETWEEN THE PARTIES THAT IS NOT SUBJECT TO ARBITRATION OR CANNOT BE HEARD IN SMALL CLAIMS COURT WILL BE RESOLVED ON AN INDIVIDUAL BASIS EXCLUSIVELY IN THE STATE OR FEDERAL COURTS OF NORTH CAROLINA AND THE UNITED STATES, RESPECTIVELY, SITTING IN MACON COUNTY, NORTH CAROLINA.

17. Miscellaneous 

This Agreement is a complete statement of the agreement between you and us and our service providers, and sets forth our entire liability and your exclusive remedy with respect to the Service and its use. Our agents, employees, distributors, and dealers are not authorized to make modifications to this Agreement, or to make any additional representations, commitments, or warranties binding on us and our service providers. Any waiver of the terms herein by us must be in writing signed by an authorized officer of Drake and expressly referencing the applicable provisions of this Agreement. If any provision of this Agreement is invalid, illegal or unenforceable under applicable law, then such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of this Agreement will continue in full force and effect. Headings are included for convenience only, and shall not be considered in interpreting this Agreement. This Agreement does not limit any rights that we may have under trade secret, copyright, patent or other laws.

We have the right to change or add to the terms of this Agreement at any time, and to change, delete, discontinue or impose conditions on any feature or aspect of the Service (including but not limited to Internet-based services, pricing, technical support options, and other Service-related policies) upon notice by any means we determine in our discretion to be reasonable, including posting information concerning any such change, addition, deletion, discontinuance or conditions in the Service or on any Drake-sponsored website, including but not limited to this Site. Please review the Site periodically for changes. Any use of the Site and Service by you after our publication of any such changes shall constitute your acceptance of this Agreement as modified.

18. U.S. Government Restricted Rights

The Service is a “commercial item,” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227-7202-1 through 227-7202-4, all U.S. Government End Users acquire the Service with only those rights set forth herein.

19. Intellectual Property Rights

The Site and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are owned by Drake, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. No right, title, or interest in or to the Site or any content on the Site is transferred to you, and all rights not expressly granted are reserved by Drake.

 

20. Trademarks

The 1040.com name, logo and all related names, logos, product and service names, designs, and slogans are trademarks of Drake or its affiliates or licensors. You must not use such marks without the prior written permission of Drake. All other names, logos, product and service names, designs, and slogans on the Site are the trademarks of their respective owners.

21. Notices and Procedure for Making Claims of Copyright Infringement

If you believe any materials accessible on or from the Site infringe your copyright, you may request removal of those materials by submitting written notification to Drake’s copyright agent designated below. ALL INQUIRIES THAT DO NOT COMPLY WITH THE FOREGOING PROCEDURE WILL RECEIVE NO RESPONSE.

In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), the written notice (the “DMCA Notice”) must include substantially the following:

  • Your physical or electronic signature.
  • Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Site, a representative list of such works.
  • Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material.
  • Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address).
  • A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law.
  • A statement that the information in the written notice is accurate.
  • A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner. Our designated copyright agent to receive DMCA Notices is:

 

Brenda Burrell

Drake Software, LLC

235 E Palmer St

Franklin, NC 28734

legal@drakesoftware.com

If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective. Please be aware that if you knowingly materially misrepresent that material or activity on the Site is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.

 

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