The KPMG Spark Services are currently only available to users and businesses who are located in the United States of America. If You or Your business are located outside of the United States, you may not use the KPMG Spark Services. For the purpose of this provision, to be located in the United States, a business must be both operated and legally established within the United States.
By registering to use and/or using the KPMG Spark Services in any manner, You, just as if You had done so in writing, (i) acknowledge that You have read and understood the Terms, (ii) represent and warrant that You are at least eighteen (18) years of age, and if applicable, have the authority to enter into these Terms on behalf of any person or entity for whom You are accessing or using the KPMG Spark Services, and (iii) agree to these Terms and all other rules, policies, and procedures that may be published on the Website from time to time, each of which are incorporated into these Terms and each of which may be updated without notice to you. Certain of the KPMG Spark Services may be subject to additional terms and conditions specified by us from time to time; Your use of such KPMG Spark Services is subject to those additional terms and conditions, which are incorporated into these Terms by reference. These Terms are binding upon any use of the KPMG Spark Services, including by Subscribers and Authorized Users (each as defined below), and apply to You from the time that KPMG provides You with access to the KPMG Spark Services.
The KPMG Spark Services will evolve over time based on user feedback. KPMG may amend these Terms from time to time, at which point You will be required to click “accept” or “agree” to show Your consent to an amended version of these Terms.
You are solely responsible for ensuring that these Terms are in compliance with all laws, rules and regulations applicable to you. The right to access the KPMG Spark Services is revoked where these Terms or use of the KPMG Spark Services is prohibited or to the extent offering, sale or provision of the KPMG Spark Services conflicts with any applicable law, rule or regulation.
IF YOU ARE ACCESSING THE KPMG SPARK SERVICES IN YOUR CAPACITY AS AN ACCOUNTING FIRM OR A CERTIFIED PUBLIC ACCOUNTANT (EACH, A “CPA”), OR A CLIENT OF A CPA (EACH, A “CPA CLIENT”), CERTAIN TERMS AS EXPRESSLY INDICATED HEREIN MAY SPECIFICALLY APPLY TO YOU BUT NOT OTHER USERS AND CERTAIN TERMS AS EXPRESSLY INDICATED HEREIN MAY NOT APPLY TO YOU AT ALL.
“Subscription Fee” means the monthly fee (excluding any taxes) payable by You in accordance with the fee schedule set out on the Website (https://www.kpmgspark.com/pricing) or your pricing agreement with KPMG. “Data” means any data and/or information inputted by You or on Your behalf into the Website. “Intellectual Property Right” means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered. “KPMG”, “we” or “us” means KPMG LLP, the United States member firm of the KPMG network of member firms (the “KPMG Network”). KPMG, the other member firms of the KPMG Network and firms and entities controlled by, or under common control with, one or more such member firms (collectively, the “Member Firms”), and their affiliates, and their respective partners, principals, employees, and agents are collectively referred to herein as the “KPMG Parties.” . “Authorized User” means any person or entity authorized by the Subscriber to access or use the KPMG Spark Services from time to time on behalf of the Subscriber. “Organization” means the organization the Subscriber represents or the organization an Authorized User has been added to and granted access to via the Website. “Subscriber” means the person or entity who registers to use the KPMG Spark Services, and/or any person or entity on whose behalf that person registers to use the KPMG Spark Services. “You” means any Subscriber or Authorized User. “Your” has a corresponding meaning.
2. USE OF SOFTWARE
- 2.1. Subject to these Terms, KPMG grants You and Your Authorized Users a non-exclusive, non-transferable and non-sublicensable (except as expressly permitted herein) license to access and use the KPMG Spark Services via the Website in accordance with Your or their role as either a Subscriber or Authorized User, whichever is applicable. You acknowledge and agree that:
3. KPMG IS NOT A SUBSTITUTE FOR A LAWYER OR LAW FIRM
- 3.1 YOU HEREBY ACKNOWLEDGE AND AGREE THAT KPMG, THE KPMG Spark SERVICES, AND OTHER CONTENT ARE NOT A LAW FIRM OR A SUBSTITUTE FOR A LAW FIRM. KPMG CANNOT AND DOES NOT RENDER ANY LEGAL SERVICES TO YOU, AND THE KPMG Spark SERVICES ARE NOT, AND SHOULD NEVER BE, A SUBSTITUTE FOR LEGAL ADVICE OR LEGAL SERVICES. WITHOUT LIMITING THE FOREGOING, YOU ACKNOWLEDGE AND AGREE THAT ANY FORMS, TEMPLATES, OR CONTENT PROVIDED THROUGH THE KPMG Spark SERVICES ARE PRESENTED “AS IS” WITHOUT WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND AND DO NOT CONSTITUTE LEGAL ADVICE. YOUR RELIANCE ON ANY KPMG Spark SERVICES IS SOLELY AT YOUR OWN RISK. YOUR COMMUNICATIONS WITH KPMG ARE NOT ATTORNEY WORK-PRODUCT AND ARE NOT PROTECTED UNDER ANY PRIVILEGE, INCLUDING ATTORNEY-CLIENT PRIVILEGE.If You need legal advice, we encourage You to hire a lawyer.
- 3.2 Federal, state or local law (statutory, common or otherwise), constitution, treaty, convention, ordinance, code, rule, regulation, order, injunction, judgment, decree, ruling or other similar requirement enacted, adopted, promulgated or applied by a governmental authority, consumer contracts (collectively, “Law”) and publicly available facts about entities that issue consumer contracts are voluminous and ever-changing. Accordingly, KPMG cannot and does not guarantee that any information provided through the KPMG Spark Services is current. Law relevant to consumers varies depending on the relevant jurisdiction (for example, the applicable U.S. state), and the KPMG Spark Services are not, and cannot be, necessarily customized to Your jurisdiction.
This section does not apply to CPA Clients who are billed by their CPA for the KPMG Spark Services.
- 4.1 Billing: Upon registering for an account, you acknowledge that the KPMG Spark Services have an initial and recurring payment feature, and you accept responsibility for all recurring charges prior to cancellation. YOU ACKNOWLEDGE AND AGREE THAT KPMG MAY SUBMIT MONTHLY CHARGES WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY KPMG) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE KPMG REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD, GO TO https://www.kpmgspark.com/
- 4.2 Subscription Fee changes: KPMG may change the amount of the Subscription Fee in its sole discretion from time to time upon notice to You.
- 4.3 Payment: KPMG shall bill through a payment method linked to Your account on the KPMG Spark Services for use of the KPMG Spark Services. By choosing to register for the KPMG Spark Services, you agree to pay KPMG all charges at the prices then in effect for any use of such KPMG Spark Services in accordance with the applicable payment terms and you authorize us to charge your chosen payment provider (your “Payment Method”). You agree to make payment using that selected Payment Method. KPMG reserves the right to correct any errors or mistakes that it makes even if it has already requested or received payment. KPMG will continue billing monthly until this Agreement is terminated in accordance with Section 9. All billing information will be sent to You, or to a billing contact whose details are provided by You (“Billing Contact”), by email. You are responsible for payment of all taxes in addition to the Subscription Fee.
- 4.4 Reaffirmation of Authorization: Your non-termination or continued use of the KPMG Spark Services reaffirms that KPMG is authorized to charge You for those KPMG Spark Services. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to use the KPMG Spark Services.
- 4.5 Preferential pricing or discounts: You may from time to time be offered preferential pricing or discounts for the KPMG Spark Services. Eligibility for such preferential pricing or discounts is conditional upon Your acceptance of responsibility for payment of any Subscription Fees in relation to all of Your Organizations. Without prejudice to any other rights that KPMG may have under these Terms or at law, KPMG reserves the right to bill for the full (non-discounted) Subscription Fees due or suspend or terminate Your use of the KPMG Spark Services in respect of any or all of Your Organizations in the event that any amount owed for those Subscription Fees are not paid in full by the due date for payment.
- 4.6 Automated Bank transaction data delivered into Your account: Where available, automated bank account transaction data feeds are generally provided to You free of charge. However, KPMG reserves the right to pass on any charges related to the provision of bank feed data on a case-by-case basis at KPMG’s sole discretion. KPMG would first inform You via email to indicate what those charges are likely to be (as such charges may vary depending on Your bank and Your volume of bank feeds). You have the option to decide to discontinue use of automated bank feeds at any time. To exercise this option, You must notify KPMG of which automated bank account transaction data feeds You want to discontinue. Upon receiving such notice KPMG will arrange for such feeds to be terminated in accordance with each bank’s usual practices.
5. YOUR OBLIGATIONS AND RESPONSIBILITIES
- 5.1 General obligations: You must only use the KPMG Spark Services for Your own lawful internal business purposes, in accordance with these Terms and any additional or amended terms and conditions posted on the Website and/or noticed to you by KPMG.
- 5.2 Registration: You must provide accurate complete information and keep Your account information updated. You shall not: (i) select or use as a username a name of another person with the intent to impersonate that person; (ii) use as a username a name subject to any rights of a person other than You without appropriate authorization; or (iii) use, as a username, a name that is otherwise offensive, vulgar or obscene. You may never use another person’s user account or registration information for the KPMG Spark Services without permission. You must notify us immediately of any change in Your eligibility to use the KPMG Spark Services, breach of security or unauthorized use of your account. You should never publish, distribute or post login information for your account. You shall have the ability to delete Your account, either directly or through a request made to one of our employees or affiliates.
- 5.3 Access conditions: You must ensure that all usernames and passwords required to access the KPMG Spark Services are kept secure and confidential. You must immediately notify KPMG of any unauthorized use of Your passwords or any other breach of security and KPMG will reset Your password. You must take all other actions that KPMG Spark reasonably deems necessary to maintain or enhance the security of KPMG’s computing systems and networks and Your access to the KPMG Spark Services.
- 5.4 Prohibited Uses: As a condition of use, You promise not to use the KPMG Spark Services for any purpose that is prohibited by these Terms. You are responsible for all of Your activity in connection with the KPMG Spark Services. When accessing and using the KPMG Spark Services, You shall not (and shall not permit any third party to) either (i) take any action or (ii) upload, download, post, submit, transmit, input, or otherwise distribute or facilitate distribution of any Data on or through the KPMG Spark Services that:
- 5.5 Usage Limitations: Your use of the KPMG Spark Services may be subject to limitations, including but not limited to monthly transaction volumes and the number of calls You are permitted to make against KPMG’s application programming interface. Any such limitations will be specified within the applicable Services.
- 5.6 Referral Program: From time to time KPMG may implement a program through which entities may help KPMG obtain Subscribers in exchange for a referral fee. Where required by law or regulation, the terms of any such program will be specified by KPMG at the time of implementation.
- 5.7 Information: You agree that in order to provide the KPMG Spark Services you must provide certain information on a timely basis. You agree that all information supplied by you or your agent to KPMG will be complete and accurate. You acknowledge that KPMG is relying upon such information in the preparation and completion of each and all orders without any verification by KPMG as to its accuracy or completeness. You agree to provide updates to information on a timely basis. In providing the KPMG Spark Services KPMG may provide advice or recommendations and you will provide all management decisions on a timely basis. You agree to hold the KPMG Parties harmless and defend and indemnify the KPMG Parties from and against any claims, causes of action, damages and liability of whatever kind or nature, including but not limited to court costs and reasonable attorney fees if information provided by you or your agent is inaccurate or incomplete. It is your responsibility to inform KPMG of any changes or corrections to your information.
- 5.8 Bookkeeping Financial Statement Preparation: The KPMG Spark Services include bookkeeping and the preparation of monthly financial statements prepared on the tax basis of accounting based on information You provide. These are not intended to be a full set of financial statements. Services to prepare the financial statements for Your business (or the business of your CPA Client, as applicable) are subject to the following:
- 5.9 Filing and Business License Fees: You understand and agree that the KPMG Spark Service does not include filing fees and or business licensing fees. Except as otherwise noted, filing and recording fees include all mandatory or applicable federal, state, county and local administrative fees and may also include publishing, name check, handling processing fees and business licensing.
- 5.10 Communication Conditions: As a condition of these Terms, if You use any communication tools available through the Services (such as any forum, chat room or message center), You agree only to use such communication tools for lawful and legitimate purposes. You must not use any such communication tool for posting or disseminating any material unrelated to the use of the KPMG Spark Services, including (but not limited to): offers of goods or services for sale, unsolicited commercial e-mail, files that may damage any other person’s computing devices or software, content that may be offensive to any other users of the KPMG Spark Services, or material in violation of any law (including material that is protected by copyright or trade secrets which You do not have the right to use). When You make any communication on the KPMG Spark Services, You represent that You are permitted to make such communication. KPMG is under no obligation to ensure that the communications on the KPMG Spark Services are legitimate or that they are related only to the use of the KPMG Spark Services. As with any other mobile- or web-based forum, You must exercise caution when using the communication tools available on the KPMG Spark Services. However, KPMG does reserve the right to remove any communication at any time in its sole discretion.
- 5.11 Indemnity: You agree to defend, indemnify, and hold harmless KPMG and the KPMG Parties from all liabilities, claims, and expenses, including reasonable attorneys’ fees, that arise from or relate to Your or Your Authorized Users’ use or misuse of, or access to, the KPMG Spark Services, including Your or Your Authorized Users’ violation of the Terms, infringement by You, any of Your Authorized Users or any other third party using Your account or identity in the KPMG Spark Services of any intellectual property or other right of any person or entity, and Your or Your Authorized Users’ breach of any of these Terms or any obligation You may have to KPMG, including (but not limited to) any costs relating to the recovery of any Subscription Fees that are due but have not been paid by You. We reserve the right to assume the exclusive defense control of any matter otherwise subject to indemnification by You, in which event You will assist and cooperate with us in asserting any available defenses.
6. INTELLECTUAL PROPERTY
- 6.1 General: Except as expressly provided herein, KPMG alone retains all Intellectual Property Rights relating to the KPMG Spark Services. Any suggestions, ideas, enhancement requests, feedback, recommendations or other information or documentation provided by You relating to the KPMG Spark Services (“Feedback”) shall be assigned by You to KPMG. KPMG will be free to use or disseminate Feedback. You will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under these Terms.
- 6.2 Ownership and Use of Data: Except as set forth herein, You shall retain all Intellectual Property Rights (if any) in Your Data. However, Your access to the Data is contingent on full payment of the Subscription Fee when due. You hereby grant KPMG a license to use, copy, transmit, store, and back-up Your information and Data for the purposes of enabling You to access and use the KPMG Spark Services and for any other purpose related to provision of the KPMG Spark Services to You. You also hereby permit KPMG, with the assistance of third parties, to use the information provided to KPMG for other purposes, such as improving the delivery or quality of services or technology to You and other clients, thought leadership projects, to allow You and other clients to evaluate various business transactions and opportunities, and for use in presentations to You, other clients and non-clients. When Your information is used outside of KPMG or such third parties assisting them, you will not be identified as the source of the information. You agree that any data or records uploaded to the KPMG Spark Services by You or on Your behalf or pursuant to Your direction shall become the property of KPMG LLP regardless of whether You become, or continue as, a client of the KPMG Spark Services. Upon termination of these Terms in accordance with Section 9, at any time KPMG may, in its sole discretion, destroy Your Data or any information otherwise provided by You to KPMG (or, if you are a CPA Client, provided by your CPA on your behalf) of any type or nature and shall have no obligation to maintain or provide such Data or information to You. In addition, KPMG may retain Your Data or any information otherwise provided by You to KPMG to comply with its obligations under applicable law, regulation, or professional policy regarding document retention (including to meet applicable reporting obligations).
- 6.3 Backup of Data: You must maintain copies of all Data inputted into the KPMG Spark Services. KPMG adheres to industry-standard policies and procedures to prevent data loss, but does not make any guarantees that there will be no loss of Data. KPMG expressly excludes liability for any loss of Data no matter how caused.
- 6.4 Third party applications and Your Data: The KPMG Spark Services may permit You to link to certain other websites, services or resources (“Third-Party Applications”) on the Internet, and certain Third-Party Applications may contain links to the KPMG Spark Services. If You choose to enable Third-Party Applications for use in conjunction with the KPMG Spark Services, You do so at Your own risk. These Third-Party Applications are not under our control. You acknowledge that KPMG may allow the providers of those Third-Party Applications to access Your Data as required for the interoperation of such Third-Party Applications with the KPMG Spark Services. You further acknowledge and agree that KPMG shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any Third-Party Application, or for any disclosure, modification or deletion of Your Data by any Third-Party Applications. KPMG is not responsible for the privacy practices of any Third-Party Applications, and urges You to read the privacy policies of any Third-Party Applications before enabling their use in conjunction with the KPMG Spark Services.
- 6.5 Third party content: Content from other users, suppliers, advertisers, and other third parties, including Third-Party Applications, may be made available to You through the KPMG Spark Services. Because KPMG does not control such content, You agree that KPMG is not responsible for any such content. KPMG does not make any guarantees about the accuracy, currency, suitability, or quality of the information in such content, and KPMG assumes no responsibility for unintended, offensive, indecent, objectionable, inaccurate, misleading, or unlawful content made available by other users, advertisers, and other third parties or violation of any third party rights related to such content. You understand that by using the Services You may be exposed to third-party websites that You find. KPMG makes no warranty, representation, endorsement, or guarantee regarding, and accepts no responsibility for, the quality, content, nature or reliability of Third-Party Applications accessible from the Website. KPMG provides these links for Your convenience only and does not control such websites. KPMG’s inclusion of links to such websites does not imply any endorsement of the materials on such Third-Party Applications or any association with their operators. The KPMG Spark Services may contain links to websites that are operated by KPMG but which operate under different terms.
- 6.6 It is Your responsibility to review the privacy policies and terms of service of any other website or mobile application that You visit, including any Third-Party Applications made available to You through the KPMG Spark Services. YOU AGREE THAT IN NO EVENT WILL KPMG BE LIABLE TO YOU IN CONNECTION WITH ANY WEBSITES, SERVICES, CONTENT, MATERIALS, OR PRACTICES OF ANY THIRD PARTY. YOU ACKNOWLEDGE AND AGREE THAT ANY CLAIM WHICH YOU MAY HAVE IN RESPECT OF SUCH THIRD-PARTY APPLICATIONS MAY ONLY BE ASSERTED AGAINST THE PROVIDER OF SUCH THIRD-PARTY APPLICATIONS, AND NOT AGAINST KPMG OR ANY OF THE KPMG PARTIES.
7. WARRANTIES AND ACKNOWLEDGEMENTS: COVENANTS
- 7.1 Authority: You warrant that where You have registered to use the KPMG Spark Services on behalf of another person or entity, You have the authority to agree to these Terms on behalf of that person or entity and to bind that person or entity to perform any and all obligations that You become subject to by virtue of these Terms, without limiting Your own personal obligations under these Terms.
- 7.2 Acknowledgement: You acknowledge that: You are also authorized to access the processed information and Data that is made available to You through Your use of the Website and the KPMG Spark Services (whether that information and Data is Your own or that of anyone else).
- 7.3 KPMG has no responsibility to any person other than You and nothing in this Agreement confers, or purports to confer, a benefit on any person other than You. If You use the KPMG Spark Services or access the Website on behalf of or for the benefit of anyone other than Yourself (whether a body corporate or otherwise) You acknowledge and agree that:
- 7.4 Consumer guarantees: You warrant and represent that You are acquiring the right to access and use the KPMG Spark Services for the purposes of a business and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the KPMG Spark Services, the Website, or the Terms.
- 7.5 Warranty Disclaimer: THE KPMG Spark SERVICES PROVIDED BY KPMG TO YOU ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND. KPMG HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, REPRESENTATIONS OR CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE. KPMG DOES NOT WARRANT THAT THE SERVICES WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE. CERTAIN STATE LAWS MAY NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES; IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
- 7.6 Electronic Communications: KPMG and You may communicate with one another by electronic mail or otherwise transmit documents in electronic form during the course of accessing or using the KPMG Spark Services. Each party accepts the inherent risks of these forms of communication (including the security risks of interception of or unauthorized access to such communications, the risks of corruption of such communications and the risks of viruses or other harmful devices). You agree that the final hardcopy or electronic version of a document, or other written communication that KPMG transmits to You shall supersede any previous versions transmitted by KPMG to You. By continuing to use the KPMG Spark Services, you consent to receive text messages sent by an automatic telephone dialing system. Consent to these terms is not a condition of purchase.
8. LIMITATION OF LIABILITY
- 8.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW, KPMG EXCLUDES ALL LIABILITY AND RESPONSIBILITY TO YOU (OR ANY OTHER PERSON) IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE KPMG Spark SERVICES, FOR ANY (I) LOSS (INCLUDING LOSS OF INFORMATION, DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, PROFITS AND SAVINGS), (II) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION) OR (III) SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY, CONSEQUENTIAL DAMAGES RESULTING FROM ANY USE OF, OR RELIANCE ON, THE KPMG Spark SERVICES. CERTAIN STATE LAWS MAY NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY OR FOR THE LIMITATION OR EXCLUSION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH CASES, KPMG’s LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. NOTHING IN THESE TERMS SHALL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU.
- 8.2 IF YOU SUFFER ANY DIRECT LOSS OR DAMAGE AS A RESULT OF YOUR USE OF THE SERVICES, ANY CLAIM BY YOU AGAINST KPMG WILL BE LIMITED IN RESPECT OF ANY ONE INCIDENT, OR SERIES OF CONNECTED INCIDENTS, TO THE SUBSCRIPTION FEES PAID BY YOU IN THE PREVIOUS TWELVE (12) MONTHS. ; PROVIDED THAT IF YOU ARE A CPA OR CPA CLIENT, KPMG’S TOTAL LIAIBLITY TO CPA AND/OR CPA CLIENT IN AGGREGATE FOR SUCH INCIDENTS SHALL NOT EXCEED THE SUBSCRIPTION FEES ATTRIBUTABLE TO THE CPA CLIENT ACCOUNT(S) TO WHICH THE INCIDENTS RELATE IN THE PREVIOUS TWELVE (12) MONTHS. ANY REFERENCE TO KPMG IN THIS SECTION ALSO INCLUDES THE KPMG PARTIES AND ITS AND THEIR SUPPLIERS OR CONTENT PROVIDERS. THE FOREGOING LIMITATIONS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
- 8.3 If You are not satisfied with the KPMG Spark Services, Your sole and exclusive remedy is to terminate these Terms in accordance with Section 9 (Termination) below.
- 9.1 Payment policy: Billing will begin from the day Your billing details are added into the KPMG Spark Services. KPMG will not provide any refund for any remaining prepaid period for a prepaid Subscription Fee subscription.
- 9.2 Term; Renewal; No-fault termination: These Terms will continue for the period covered by the Subscription Fee. At the end of each billing period these Terms will automatically continue for another period of the same duration as that period, provided You (or your CPA, if applicable) continue to pay the prescribed Subscription Fee when due, unless You (or your CPA or CPA Client, if applicable) terminate this agreement by giving notice to KPMG at least thirty (30) days in advance. If this agreement is terminated in this manner on less than thirty (30) days before the end of your current billing period, Subscription Fees will be charged on a pro-rata basis for the following month until termination takes effect. KPMG may terminate this agreement at any time immediately upon notice to You (or your CPA, if applicable).
- 9.3 Breach or Insolvency:
- 9.4 For the avoidance of doubt, if payment of any invoice for Subscription Fees due in relation to any of Your Billing Contacts, Billing Plans or any of Your Organizations (as defined above) is not made in full by the relevant due date, KPMG may suspend or terminate Your use of the KPMG Spark Services, the authority for all or any of Your Organizations to use the KPMG Spark Services, or Your rights of access to all or any Data.
- 9.5 Accrued Rights: Termination of this Agreement is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. On termination of this Agreement You shall:
10. HELP DESK
- 10.1 Technical Problems: In the case of technical problems You must make all reasonable efforts to investigate and diagnose problems before contacting KPMG. If You still need technical help, please check the support provided on the Website or email us at email@example.com
- 10.2 Service availability: While KPMG intends that the KPMG Spark Services should be available from 9:00am to 6:00pm MST during business days, it is possible that on occasions the Services may be unavailable to permit maintenance or other development activity to take place. If for any reason KPMG has to interrupt the KPMG Spark Services for longer periods than KPMG would normally expect, KPMG will use reasonable endeavors to publish in advance details of such activity on the Website.
11. ARBITRATION CLAUSE & CLASS ACTION WAIVER – IMPORTANT – PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS
- 11.2 Neither You nor KPMG will participate in a class action or class-wide arbitration for any claims covered by this agreement to arbitrate. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if we are a party to the proceeding.
- 11.3 Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Services or these Terms must be filed within one (1) year after such claim of action arose or be forever banned. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Clause & Class Action Waiver section will be null and void. This arbitration agreement will survive the termination of Your relationship with us.
12. ADDITIONAL TERMS RELATING TO TAX SERVICES
This Section 12 shall apply only to Subscribers and Authorized Users who receive tax preparation services as part of the KPMG Spark Services. Tax preparation services are not currently available to CPAs or CPA Clients.
- 12.1 The Internal Revenue Service imposes penalties upon taxpayers and preparers for failure to observe due care in reporting for income tax returns. In order to insure an understanding of our mutual responsibilities, we ask all clients for whom returns are prepared to confirm the following arrangements. KPMG will prepare your federal and state income tax returns from information which you will furnish to us. We will not audit or otherwise verify the data you submit, although it may be necessary to ask you for clarification of some of the information. It is your responsibility to provide all information required for the preparation of complete and accurate returns. You should retain all original documentation and send only copies of originals, canceled checks, and other information for the basis of income and deductions. These may be necessary to prove the accuracy and completeness of the returns to a taxing authority. You have the final responsibility for the income tax returns; therefore, you should review them carefully before you sign them. The information you are supplying KPMG needs to be accurate, and complete to the best of your knowledge, and needs to be supported by records as required by law. Our work in connection with preparations of your income tax returns do not include any procedures designed to discover defalcation, or other irregularities, should any exist. We will render accounting assistance as determined to be necessary for preparation of income tax returns.
- 12.2 Notwithstanding anything to the contrary set forth herein, no provision in these Terms is or is intended to be construed as a condition of confidentiality within the scope of the Internal Revenue Code of 1986 (the “IRC”) section 6011 as implemented through Treasury Regulation 1.6011-4(b)(3)(ii) (without regard to references to payment or receipt of a minimum fee) or under any similar or analogous provisions of the laws of a state or other jurisdiction. In particular, You may disclose to any and all persons, without limitation of any kind, tax information KPMG provides to You, including all materials such as tax opinions, memoranda, or other written tax advice that describes or otherwise relates to, either or both of the tax treatment and tax structure of any transaction on which KPMG’s services are provided. You agree to use commercially reasonable efforts to inform KPMG of any conditions of confidentiality imposed by third party advisors with respect to any transaction on which KPMG’s services are requested. Such notification must occur prior to KPMG providing any advice with respect to the transaction.
- 12.3 Treasury regulations under IRC section 6011 require taxpayers to disclose to the IRS their participation in reportable transactions and IRC section 6707A imposes strict penalties for noncompliance with IRC section 6011. IRC section 6111 and the laws of various states require a material advisor with respect to a reportable transaction to make a return containing specified information concerning the transaction to the IRS or a designated state tax authority by a prescribed date, and IRC section 6707 imposes penalties for noncompliance with IRC section 6111. IRC section 6112 and the laws of various states require the material advisor to maintain, and make available to the IRS or designated state tax authority upon request, a list containing prescribed information with respect to persons advised and other information with respect to the reportable transaction, and IRC section 6708 imposes penalties for noncompliance with IRC section 6112. You agree to use commercially reasonable efforts to inform KPMG if You are required to disclose any transaction covered by the Services as a reportable transaction to the IRS or to any state or other jurisdiction adopting similar or analogous provisions to IRC section 6011. KPMG will use commercially reasonable efforts to inform You if KPMG provides Your identifying information to the IRS under IRC section 6111 or 6112, or to any state tax authority or other jurisdiction adopting similar or analogous provisions thereto.
- 12.4 Unless expressly provided for, KPMG’s services do not include representing You in the event of a challenge by the IRS or other tax or revenue authorities.
- 12.5 In rendering tax advice, KPMG may consider, for example, the applicable provisions of the IRC, and the Employee Retirement Income Security Act of 1974, each as amended, and the relevant state, local and foreign statutes, the regulations thereunder, income tax treaties, and judicial and administrative interpretations, thereof. These authorities are subject to change, retroactively or prospectively, and any such changes could affect the validity of KPMG’s advice.
- 12.6 Tax Return Standards: We apply elevated standards in preparing tax returns and providing tax advice. These standards are dependent on certain characteristics of the entity to which our services will be directed as follows:
- 12.7 Electronic Filing: We will electronically file the returns and extensions we prepare for You that are subject to tax authority mandates. The filing instructions that We provide to you will indicate the returns and extensions that We have electronically filed on Your behalf, if any, and will provide instructions and filing copies for your paper filing of the returns and extensions that were not electronically filed.
- The KPMG electronic filing identification number (EFIN) will be included in certain e-filing documentation we will provide to you for the returns e-filed using KPMG-licensed software. The KPMG EFIN is proprietary to KPMG and You are not authorized to use the KPMG EFIN for any purpose. If You do not wish to have KPMG electronically file Your returns, You must inform us in writing.
- 12.8 Written Advice: Written advice provided to you in connection with the KPMG Spark Services will be based on facts, representations, assumptions, and other information you provide to us, the completeness, accuracy and timeliness of which are critical factors in our ability to timely and accurately complete the KPMG Spark Services. Unless you request and we agree under a separate writing (a newly issued engagement letter) after our advice has been issued in final form to you, KPMG will not update our advice to take into account your updating the facts you provide to us through your discovery of new or additional facts, or your updating any information that may have formed the basis of any assumptions we made in developing our advice. In rendering advice, we will consider tax authorities that are subject to change, retroactively and/or prospectively, and any such changes could affect the advice we issue to you.
13. ADDITIONAL TERMS FOR CPAs
- 13.1 Acknowledgement. You acknowledge and agree that You have requested that KPMG provide professional services in the form of bookkeeping services on behalf of your CPA Client(s). These Terms do not require KPMG to render, and KPMG will not render pursuant to these Terms, attest advice or services to your CPA Client(s) and nothing in these Terms shall be construed as KPMG offering attest advice or services to your CPA Client(s). KPMG is performing the bookkeeping services at Your direction in connection with your provision of professional services to your CPA Client(s). KPMG has not and will not independently assess or make any representations regarding Your qualifications to perform, or performance of, the professional services required of you by your CPA Client(s), and KPMG does not guarantee the accuracy of any advice or services provided by You. For the avoidance of doubt, KPMG shall not be responsible for any accounting judgments made by You, and will have no obligation or duty to identify or correct any errors attributable to You. You represent and warrant that, to the extent you provide information of any CPA Client to KPMG through the KPMG Spark Services or otherwise, you have the requisite permissions and authority from the CPA Client, and are permitted by applicable laws, rules, regulations, and professional standards, to do so.
- 13.2 Accounting Firm Revenue. You represent and warrant that the revenues earned by You in connection with the KPMG Spark Services represent less than forty percent (40%) of your gross revenues, measured on an annual basis. If you are a CPA, You hereby covenant and agree (a) to notify KPMG if the revenues earned by You in connection with the KPMG Spark Services equals or exceeds forty percent (40%) of your revenues, measured on an annual basis, (b) that You will immediately cease to use the KPMG Spark Services and the Website and (c) that this agreement shall automatically and immediately (without any required action by You or KPMG) terminate.
- 13.3 Use of KPMG Spark Services for Clients. You may use the KPMG Spark Services only for purposes of managing the registration of CPA Clients and the provision of services to CPA Clients. Use of the KPMG Spark Services by, or for the benefit of, any CPA Client(s) is subject to such CPA Client’s acceptance of and compliance with the Terms of Service, as well as KPMG's client acceptance policies and procedures. You represent and warrant that you have performed a background check on all CPA Clients for which you intend to use the KPMG Spark Services and they are not in bankruptcy proceedings or engaged in the following activities:
- You agree to hold the KPMG Parties harmless and defend and indemnify the KPMG Parties from and against any claims, causes of action, damages and liability of whatever kind or nature relating to Your client services or your breach of this Section 13.
14. USE OF MEMBER FIRMS AND THIRD PARTIES
- 14.1 You acknowledge and agree that the KPMG Spark Services, including any applicable tax advice, may be performed by a Member Firm located outside of the United States. You understands that each Member Firm is a separate, distinct and independent legal entity and is not a partner, principal, agent or affiliate of KPMG and KPMG is not a partner, principal, agent or affiliate of any other Member Firm.
- 14.2 You further acknowledge and agree that in connection with the performance of the KPMG Spark Services, KPMG and Member Firms, in their discretion or at Your direction, may utilize the services of third parties within and outside of the United States to complete the KPMG Spark Services or analyze Your information.
- 14.3 You further acknowledge and agree that KPMG Parties may have access to confidential information from offshore locations, and that KPMG uses third parties within and outside of the United States to provide at KPMG’s direction administrative, clerical or analytical services to KPMG. These third parties may in the performance of such services have access to Your confidential information. KPMG represents to You that with respect to each Member Firm and third party, KPMG has technical, legal and/or other safeguards, measures and controls in place to protect confidential information of You from unauthorized disclosure or use. KPMG shall be responsible to You for their failure to comply.
- 14.4 Accordingly, Your agreement above extends to disclosure, ability to access, and use of Your confidential information by the parties and for the purposes set forth in these Terms and this section 13.
- 14.5 Any services performed by a Member Firm or third party shall be performed in accordance with the Terms, but KPMG shall remain responsible to You for the performance of the KPMG Spark Services. You agree that any claim relating to the KPMG Spark Services may only be made against KPMG and not any other Member Firm or third party engaged by KPMG as referred to above.
- 15.2 Modification: KPMG reserves the right, in its sole discretion, to modify or replace any of these Terms, or change, suspend, or discontinue the KPMG Spark Services (including without limitation, the availability of any feature, database, or content) at any time by posting a notice on the Website or by sending You notice through the KPMG Spark Services, via e-mail or by another appropriate means of electronic communication. We may also impose limits on certain features and services or restrict Your access to parts or all of the KPMG Spark Services without notice or liability. While we will timely provide notice of modifications, it is also Your responsibility to check these Terms periodically for changes. Your continued use of the KPMG Spark Services following notification of any changes to these Terms constitutes acceptance of those changes, which will apply to Your continued use of the KPMG Spark Services going forward. Your use of the KPMG Spark Services is subject to the Terms in effect at the time of such use.
- 15.3 Force majeure: KPMG shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
- 15.4 Assignment: These Terms are personal to You, and You may not assign, transfer or sublicense (except as expressly permitted hereunder) Your license and/or right hereunder without KPMG’s written consent. KPMG may assign, transfer or delegate any of its rights and obligations hereunder without consent.
- 15.5 Agency: No agency, partnership, joint venture, or employment relationship is created as a result of these Terms.
- 15.6 No Waiver: Our failure to enforce any part of these Terms shall not constitute a waiver of our right to later enforce that or any other part of these Terms. Waiver of compliance in any particular instance does not mean that we will waive compliance in the future. In order for any waiver of compliance with these Terms to be binding, we must provide You with written notice of such waiver through one of our authorized representatives.
- 15.7 Heading: The section and paragraph headings in these Terms are for convenience only and shall not affect their interpretation.
- 15.8 Governing law and jurisdiction: These Terms shall be governed by construed in accordance with the laws of the State of New York, including its conflict of law rules, and the laws of the United States. Subject to the provisions of Section 11 above, You agree that any dispute arising from or relating to the subject matter of these Terms shall be governed by the exclusive jurisdiction and venue of the state and federal courts in the state of New York.
- 15.9 Severability: If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
- 15.10 Notices: Any notice given under these Terms by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to KPMG must be sent to firstname.lastname@example.org or to any other email address notified by email to You by KPMG. Notices to You will be sent to the email address which You provided when setting up Your access to the KPMG Spark Services.
- 15.11 Accountancy Act: For engagements where services will be provided by KPMG through offices located in California, You acknowledge that certain of KPMG's personnel who may be considered "owners" under the California Accountancy Act and implementing regulations (California Business and Professions Code section 5079(a); 16 Cal. Code Regs. sections 51 and 51.1) and who may provide services in connection with this engagement, may not be licensed as certified public accountants under the laws of any of the various states.
Last updated 10/15/2019
By clicking “Agree” and/or accessing or using the KPMG Spark Services, you acknowledge that you have read and agree to be bound by these Terms of Service. YOUR USE OF THE KPMG SPARK SERVICES CONSTITUTES YOUR ACCEPTANCE OF ALL OF THE PROVISIONS OF THESE TERMS OF SERVICE. IF YOU ARE UNWILLING TO BE BOUND BY THESE TERMS OF SERVICE, DO NOT USE THE KPMG SPARK SERVICES.