Welcome to Simple409A.com, an independent business appraisal service owned by Tower59 LLC, a Delaware Limited Liability Company. This document constitutes a legally-binding agreement (“Agreement”) governing the terms of providing you with our service. Throughout this document, the words “Simple409A,” “Simple409A.com,” “us,” “we,” and “our,” refer to us, Tower59 LLC; our website, Simple409A.com; or our Service, as is appropriate in the context of the use of the words. Likewise, the words “you,” “user,” and “your” refer to you, the person who is being presented with this document for your agreement, though “User” may also refer to certain others as defined below.
2. Description of Service
Through its Simple409A service, Tower59 offers qualified, independent business appraisals for use with IRS section 409A. Although we work mainly with privately held companies with less than $50 million in revenue and 3 or less classes of shares, we are usually able to work with companies of any size, whether public or private. We appraise the Fair Market Value of companies and offer a qualified opinion for pricing options.
Throughout this Agreement, we may use certain words or phrases, and it is important that you understand the meaning of them. The list is not all-encompassing and no definition should be considered binding to the point that it renders this Agreement nonsensical:
“Agreement” means these Terms of Service;
“Service” refers to the services that we provide through our Site;
“Simple409A” refers to our business (Tower59 LLC), our Site (www.simple409a.com), or our Service, depending on the context of the usage;
“Site” refers to our website, www.simple409a.com;
“User” refers to you, our customers, and general visitors to our Site;
“You” refers to you, the person who is entering into this Agreement with Tower59 LLC.
4. Information Supplied
When you contact us or sign up for our Service, you will be asked for certain information, including your name, e-mail address, telephone number, company address, and any other information that we require to process your order or assess the value or your company.
Because our Service involves the payment for services rendered, we require that, in order for you to use our Service, you must be at least the minimum age of contractual capacity in the State of Delaware, which is eighteen. If the jurisdiction in which you reside has a higher minimum age of contractual capacity than that of the State of Delware, then you must be at least that higher age in order to use our Service.
Please understand the Service that we provide. When purchasing our Service, we guarantee that the valuation of your business will be reviewed by at least two qualified professionals who meet the requirements of Section 409A of the Internal Revenue Code. Like any valuation, we cannot guarantee that the valuation will perfectly reflect the actual value of your assets, as value may vary. Additionally, our valuation may vary if we are not provided with full and truthful documentation by our Users.
Therefore, you hereby agree to waive us from any claims, actions, or other pursuits of damages or financial compensation for any loss that may be incurred as a result of the use of our Service, including inaccurate valuations, whether or not you might otherwise be entitled to the recovery of such damages.
Nothing about our Service should be construed as an opportunity to avoid hiring any accountant, tax lawyer, or other professional that you would otherwise hire had we not provided our Service.
6. Our Copyright
You agree not to copy, distribute, display, disseminate, or otherwise reproduce any of the information on our Site, or our Site itself, without our prior written permission. This includes, but is not limited to, a prohibition on aggregating the content posted to our Site and republishing it elsewhere. Such copying not only has the potential to affect certain copyrights that we may hold in the arrangement of our data, but can also negatively impact our network capacity. You agree that this section limits your rights more than the simple application of intellectual property law would, and constitutes a contractual obligation.
7. Your Copyright
It is vital for us to be permitted to use the documents you provide us with to conduct valuations without fearing that such usage will result in a copyright infringement lawsuit if, for example, one of our valuation professionals e-mails one of the documents to another professional for the second one’s assessment. Therefore, whenever submitting content to us, you agree that you are granting us a non-exclusive, irrevocable, sub-licensable, right to use, distribute, and otherwise make use of the content that you submit to us for the purposes of processing your order and conducting quality assessment and other business improvement checks for ourselves. You warrant to us that you have the right to grant us this right over the content.
“Simple409A” and “Tower59” are trademarks of Tower59 LLC used to uniquely identify our Site, Service, and business. You agree not to use this phrase anywhere without our prior written consent. Additionally, you agree not to use our trade dress, or copy the look and feel of our website or its design, without our prior written consent. You agree that this paragraph goes beyond the governing law on intellectual property law, and includes prohibitions on any competition that violates the provisions of this paragraph.
We use the third party payment processor, PayPal, to process any payments made to us. You agree that we are not responsible for any failure by PayPal to remit payment to us that you may make through them, or any failure on their part to notify us of payment, and that in such cases, it is your duty to resolve the matter directly with the payment processor before we will supply the goods or services which you purchased from us.
Please note that chargebacks and PayPal disputes are only appropriate for certain disputes, such as non-delivery of a service that we are contractually required to deliver. Any use of fraudulent chargebacks simply to get our Service for free is strictly prohibited, and will be dealt with by reporting such chargebacks to the infringing User’s local police department and a credit bureau, as well as referring the matter to a court of competent jurisdiction.
If you conduct a chargeback or dispute against Simple409A, no matter what the reason, you agree that you are liable for the amount returned to you from Simple409A. In other words, you agree that you will not conduct chargebacks or disputes in any circumstances, as you will be liable for the amount of the chargeback. Any disputes must be resolved solely according to the other provisions of this Agreement as they relate to dispute resolution.
We may offer discounts from time to time, through the use of discount codes which have expiration dates. You agree that we may refuse to honor these at any time for any reason, including but not limited to suspicion of fraud or other unlawful activity, glitches, or any other reason. If an order is placed with a discount code, you agree that we may, at our sole discretion, choose to cancel the order and refund the money that you have paid us, if any, without any further liability towards you.
If you are not satisfied with our Service, we offer a refund up to the point that our draft report has been approved by you. Once the draft report is approved, we send the final report and we cannot effectively retract the intangible service (information) that we have provided you with at that point, thus no refund is available after approving the draft report.
11. Revocation of Consent
Where Tower59 LLC has given prior written consent for your use of our protected material in accordance with our above “Copyright” and “Trademarks” provisions, we may revoke that consent at any time. If we so request, we may require that you immediately take action to remove from circulation, display, publication, or other dissemination, any of the marks, copyrighted content, or other materials that we previously consented for you to use, even if it would cause an economic loss or other harm to you. Therefore, we do not recommend using our trademark or our copyrighted materials, even when authorized, unless done in a manner which would not cause hardship to you if you were required to cease using the materials.
12. Representations & Warranties
WE MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE MERCHANTABILITY OF OUR SERVICE OR FITNESS FOR ANY PARTICULAR PURPOSE. YOU AGREE THAT YOU ARE RELEASING US FROM ANY LIABILITY THAT WE MAY OTHERWISE HAVE TO YOU IN RELATION TO OR ARISING FROM THIS AGREEMENT OR OUR PRODUCTS, FOR REASONS INCLUDING, BUT NOT LIMITED TO, FAILURE OF OUR SERVICE, NEGLIGENCE, OR ANY OTHER TORT. TO THE EXTENT THAT APPLICABLE LAW RESTRICTS THIS RELEASE OF LIABILITY, YOU AGREE THAT WE ARE ONLY LIABLE TO YOU FOR THE MINIMUM AMOUNT OF DAMAGES THAT THE LAW RESTRICTS OUR LIABILITY TO, IF SUCH A MINIMUM EXISTS.
YOU AGRE THAT WE ARE NOT LIABLE FOR ANY OFFERS MADE BY THIRD PARTIES THROUGH ADVERTISEMENTS ON OUR SITE, INCLUDING BUT NOT LIMITED TO GOOGLE ADSENSE ADVERTISEMENTS. YOU ALSO AGREE THAT WE ARE NOT LIABLE FOR ANY FAILURE OF THE SERVICES OF OUR COMPANY OR A THIRD PARTY, INCLUDING ANY FAILURES OR DISRUPTIONS, UNTIMELY DELIVERY, SCHEDULED OR UNSCHEDULED, INTENTIONAL OR UNINTENTIONAL, ON OUR SITE WHICH PREVENT ACCESS TO OUR SITE TEMPORARILY OR PERMANENTLY. PLEASE ENSURE THAT YOU PLACE YOUR ORDER EARLY INTO THE TIME THAT YOU KNOW YOU WILL REQUIRE OUR SERVICE, IN ORDER TO INCREASE THE LIKELIHOOD THAT YOU WILL RECEIVE YOUR REPORT WITHIN THE TIME THAT YOU REQUIRE IT.
THE PROVISION OF OUR SERVICE TO YOU IS CONTINGENT ON YOUR AGREEMENT WITH THIS AND ALL OTHER SECTIONS OF THIS AGREEMENT. NOTHING IN THE PROVISIONS OF THIS “REPRESENTATIONS & WARRANTIES” SECTION SHALL BE CONSTRUED TO LIMIT THE GENERALITY OF THE FIRST PARAGRAPH OF THIS SECTION.
For Jurisdictions that do not allow us to limit our liability: Notwithstanding any provision of these Terms, if your jurisdiction has provisions specific to waiver or liability that conflict with the above then our liability is limited to the smallest extent possible by law. Specifically, in those jurisdictions not allowed, we do not disclaim liability for: (a) death or personal injury caused by its negligence or that of any of its officers, employees or agents; or (b) fraudulent misrepresentation; or (c) any liability which it is not lawful to exclude either now or in the future.
IF YOU ARE A RESIDENT OF A JURISDICTION THAT REQUIRES A SPECIFIC STATEMENT REGARDING RELEASE THEN THE FOLLOWING APPLIES. FOR EXAMPLE, CALIFORNIA RESIDENTS MUST, AS A CONDITION OF THIS AGREEMENT, WAIVE THE APPLICABILITY OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” YOU HEREBY WAIVE THIS SECTION OF THE CALIFORNIA CIVIL CODE. YOU HEREBY WAIVE ANY SIMILAR PROVISION IN LAW, REGULATION, OR CODE THAT HAS THE SAME INTENT OR EFFECT AS THE AFOREMENTIONED RELEASE.
You agree to indemnify and hold us harmless for any claims by you or any third party which may arise from or relate to this Agreement or the provision of our Service to you, including any damages caused by your legitimate use of our Site or Service, or by your breach of this Agreement. You also agree that you have a duty to defend us against such claims and we may require you to pay for an attorney(s) of our choice in such cases. You agree that this indemnity extends to requiring you to pay for our reasonable attorneys’ fees, court costs, and disbursements. In the event of a claim such as one described in this paragraph, we may elect to settle with the party/parties making the claim, and you shall be liable for the damages as though we had proceeded with a trial.
14. Choice of Law
This Agreement shall be governed by the laws in force in the State of Delaware. The offer and acceptance of this contract is deemed to have occurred in the State of Delaware.
15.1 Forum of Dispute
In order to limit the costs and complexity of legal proceedings against Tower59 LLC, you agree that any dispute naming Tower59 LLC or a party acting for or on behalf of Tower59 LLC arising from or relating to this Agreement will be heard solely by the Delaware small claims system (“Small Claims Court”), known in the State of Delaware as the Justice of the Peace Court. You agree that even if you may be entitled to monetary, equitable, or other relief exceeding the jurisdiction of the Small Claims Court, you will waive your right to recover that relief and still bring your action within the Small Claims Court. In the State of Delaware, the Small Claims Court has monetary jurisdiction of up to $15,000 in contractual disputes and negligence cases, meaning that even if you would otherwise have the right to recover more than $15,000 in damages from us in such a case, you agree that you will only sue for the $15,000.
If you bring a dispute in a manner other than in accordance with this section, you agree that we may move to have it dismissed, and that you will be responsible for our reasonable attorneys’ fees, court costs, and disbursements in doing so.
You agree that in the event of a dispute arising from or relating to this Agreement or our provision of services to you, the unsuccessful party will be responsible for reimbursing the successful party’s reasonable attorneys’ fees, costs, and disbursements in relation to the dispute.
16. Force Majeure
You agree that we are not responsible to you for anything that we may otherwise be responsible for, if it is the result of events beyond our control, including, but not limited to, acts of God, war, insurrection, riots, terrorism, crime, labor shortages (including lawful and unlawful strikes), embargoes, postal disruption, communication disruption, failure or shortage of infrastructure, shortage of materials, or any other event beyond our control.
In the event that a provision of this Agreement is found to be unlawful, conflicting with another provision of the Agreement, or otherwise unenforceable, the Agreement will remain in force as though it had been entered into without that unenforceable provision being included in it.
If two or more provisions of this Agreement are deemed to conflict with each other’s operation, Tower59 LLC shall have the sole right to elect which provision remains in force.
We reserve all rights granted to us under this Agreement as well as under the provisions of any applicable law. Our non-enforcement of any particular provision or provisions of this Agreement or the any applicable law should not be construed as our waiver of the right to enforce that same provision under the same or different circumstances at any time in the future.
19. Termination & Cancellation
We may terminate your account or our provision of services to you, or cancel your order at our discretion without explanation, though we will strive to provide a timely explanation in most cases. Our liability for refunding you will be limited to the amount you paid directly to us for services not yet delivered, except in cases where the termination or cancellation was due to your breach of this Agreement, in which case you agree that we are not required to provide any refund or other compensation whatsoever.
You may not assign your rights and/or obligations under this Agreement to any other party without our prior written consent. We may assign our rights and/or obligations under this Agreement to any other party at our discretion. For example, we may be required to assign our rights to a third party in the event of a sale of the rights to Simple409A and its related services, and/or Tower59 LLC, to a third party.
We may amend this Agreement from time to time. When we amend this Agreement, we will update this page and post the date it was last modified. You must visit this page each time you visit our Site, and by your continued use, you agree to the amendments. If you do not agree to the amendments, you must stop using our Site and/or Service immediately.
22. California Users and Residents
Pursuant to California Civil Code Section 1789.3, any questions about pricing, complaints, or inquiries about Simple409A.com must be addressed to our agent for notice and sent via certified mail to: Tower59 LLC, 1459 18th Street, #198, San Francisco, CA 94107, United States.
Lastly, California users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
Last updated: July 30, 2012