CHIPS Act Tool Terms of Use

Last Updated: June 19, 2023

THIS PARAGRAPH CONTAINS AN IMPORTANT NOTICE: PLEASE READ IT CAREFULLY. YOU AGREE THAT DISPUTES BETWEEN YOU AND BDO WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION IN ACCORDANCE WITH THE DISPUTE RESOLUTION PROCESS DESCRIBED IN SECTION 14 BELOW. YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. 

1. Terms of Use

These terms of use (these “Terms”) apply to your use of the BDO CHIPS Act Tool (the “Tool”), unless otherwise noted in a separate agreement that BDO USA, LLP (“BDO,” “we”, “our”) have with you (“Customer Agreements”).

These Terms, along with any applicable Customer Agreements, form a binding legal agreement between you and BDO in relation to your use of the Tool. IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCESS THE TOOL. You can review the most current version of these Terms at any time. To the extent of any conflict between a provision of these Terms and a provision of an applicable Customer Agreement, the Customer Agreement provision controls.

2. Your Agreement to these Terms

BY CLICKING “I ACCEPT”, “I AGREE” OR SIMILAR, OR BY ACCESSING OR USING THE TOOL, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREED TO BE BOUND BY THE TERMS. By clicking “I accept”, “I agree” or accepting a similar prompt, or accessing or using the Tool, you also represent that you have the legal authority to accept these Terms on behalf of yourself and any party you represent in connection with your use of any Tool or who will be using the Tool under your account. If you do not agree to these Terms, you are not authorized to use any Tool.

3. Changes to these Terms

From time to time, BDO may change, remove, or supplement these Terms. If you do not agree to the updated Terms, BDO may restrict your further use of the Tool without liability to you. If you continue to use the Tool after the effective date of the updated Terms, you will be bound by the updated Terms.

4. Your Use of the Tool

Tool Use: BDO has developed this tool to assist parties in communicating information required to submit a CHIPS Act Application to the Department of Commerce. Please be advised that this tool relies on information that is input by the user of the tool, and accordingly, BDO does not guarantee the accuracy of any output or analysis based thereon. This tool is provided for informational purposes only, and should not be relied on without further consultation. Use of this tool does not result in the formation of any client or other relationship with BDO. BDO cannot enter into a client relationship until we have completed our client intake process and have entered into a written agreement that sets forth the terms and conditions of our relationship. Please consult a BDO representative to discuss any questions you may have about this tool.

Provided as-is: You acknowledge that BDO does not make, and specifically disclaims, any representations or warranties about the material, data, and information (collectively, the “Content”) to which you may have access as part of, or through your use of, the Tool. ALL CONTENT IS PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS WITHOUT EXPRESS OR IMPLIED WARRANTY OF ANY KIND. Under no circumstances is BDO liable in any way for any Content, including, but not limited to: any infringing Content, any errors or omissions in Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, transmitted, linked from, or otherwise accessible through or made available via the Tool.

5. Content Supplied by You

Your responsibility: You represent, warrant, and agree that no Content provided by for use on with the Tool (“Your Content”), violates or infringes upon the rights of any third party, including copyright, trademark, privacy, publicity, or other personal, Intellectual Property Rights or other proprietary rights, breaches or conflicts with any obligation, such as a confidentiality obligation, or contains libelous, defamatory, or otherwise unlawful material.

You acknowledge, represent and agree that Your Content is submitted voluntarily and is not confidential or proprietary, and that Your Content does not establish a relationship between you and us. You hereby grant BDO and its sublicensees a worldwide, royalty-free, non-exclusive, transferable, perpetual and irrevocable license to use, distribute, transmit, reproduce, modify, publish, translate, publicly perform and display and create derivative works of Your Content for the purposes of operating the Tool, except as otherwise prohibited by applicable law, or these Terms.  You represent and warrant that you have all the rights necessary to grant the rights in this Section 5 and that use of Your Content by BDO does not violate any law.

6. Users Representations

You hereby represent and warrant that you are the age of majority in your jurisdiction (typically age 18). You further represent and warrant that you are not a Specially Designated National or other U.S. Department of Treasury or Department of Commerce denied party or excluded from federal health care programs or other government programs, nor are you prohibited from using the Tool under any U.S. or foreign export law.

You agree to (a) only provide accurate and current information, (b) maintain the security of your passwords and user name, (c) promptly update the email address listed in connection with your account to keep it accurate so that we can contact you, and (d) be fully responsible for all uses of your account resulting from your acts or omissions. You must not set up an account on behalf of another individual or entity unless you are authorized to do so. It is a condition of your use of the Tool that all the information you provide on or in connection with the Tool is correct, current, and complete.

If you choose, or are provided with, a user name, password, or any other piece of information as part of our access control and other security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to the Tool. You shall notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also shall ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.

BDO reserves the right to modify or discontinue your account at any time for any reason or no reason at all. We have the right to disable any user name, password, or other identifier, whether chosen by you or provided by us, at any time if, in our opinion, you have violated any provision of these Terms.

7. Prohibited Conduct

You agree not to engage in any of the following activities:

Violating laws and rights: You may not (a) use the Tool for any illegal purpose or in violation of any local, state, national, or international laws, (b) violate or encourage others to violate any right of or obligation to a third party, including by infringing, misappropriating, or violating Intellectual Property Rights, confidentiality, or privacy rights, or (c) use the Tool in violation of any applicable Customer Agreement.

Disruption:  You may not use the Tool in any manner that could disable, overburden, damage, or impair the Tool, or interfere with any other individual’s or entity’s use and enjoyment of the Tool; including (a) uploading or otherwise disseminating any virus, adware, spyware, ransomware or other malicious code, or (b) interfering with or disrupting any network, equipment, or server connected to or used to provide any of the Tool, or violating any regulation, policy, or procedure of any network, equipment, or server.

Impersonation or unauthorized access: You may not impersonate another individual or entity when using the Tool. You may not use or attempt to use another’s account or personal information. You may not attempt to gain unauthorized access to the Tool, or the computer systems or networks connected to the Tool, through hacking, password mining or any other means.

8. Ownership of Intellectual Property

Except for Your Content, you acknowledge and agree that the Tool and Content, including but not limited to the software, code, architecture, design, user interface, graphics, including any use of any BDO brand, trademarks, copyrights, patents, or other protected or unprotected intellectual property (collectively, “Intellectual Property Rights”) are owned by BDO or its licensors and suppliers and is protected by applicable Intellectual Property Rights laws.

Except as provide in these Terms or in an applicable Customer Agreement, you are not granted a license or any right, title, or interest in any Intellectual Property Right use in or made available through the Tool.

You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the Content or the Tool without our prior written consent. The BDO name, the BDO logo, and all related names, logos, product and service names, designs, and slogans are trademarks of BDO or its affiliates or licensors. You must not use those marks without the prior written permission of BDO. Any other names, logos, product and service names, designs, and slogans of the Tool are the trademarks of their respective owners. Under no circumstances will you acquire any ownership rights or other interest in any such marks or content through your use of the Tool. All rights not expressly granted in these Terms or an applicable Customer Agreement are reserved exclusively by BDO.

9. Monitoring and Enforcement of Terms

We have the right to:

• Take any action with respect to your use of the Tool that we deem necessary or appropriate in our sole discretion, including if we believe that your use violates these Terms, infringes any Intellectual Property Right or other right of any person or entity, threatens the personal safety of users of the Tool or the public, or could create liability for BDO.
• Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their Intellectual Property Rights or their right to privacy.
• Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Tool.
• Terminate or suspend your access to all or part of the Tool for any or no reason, including without limitation, any violation of these Terms of Use.

Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Tool. YOU WAIVE AND HOLD HARMLESS BDO AND ITS AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.

10. Disclaimer of Warranties

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BDO OFFERS THE TOOL AS-IS AND AS-AVAILABLE, AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING THE TOOL, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION, WARRANTIES OF ACCURACY, RELIABILITY, AVAILABILITY, TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. BDO DOES NOT WARRANT THAT THE FUNCTIONS OF THE TOOL WILL BE UNINTERRUPTED OR ERROR-FREE, THAT CONTENT MADE AVAILABLE ON OR THROUGH THE TOOL WILL BE ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT TOOL IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.  

11. Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BDO OR ITS AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS, OTHER AGENTS, LICENSORS OR PROVIDERS BE LIABLE TO YOU ON ANY LEGAL THEORY FOR ANY INCIDENTAL, DIRECT, INDIRECT, PUNITIVE, CONSEQUENTIAL, EXEMPLARY, OR OTHER SPECIAL CATEGORIES OF DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR INCOME, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, OR SIMILAR DAMAGES SUFFERED OR INCURRED BY YOU OR ANY THIRD PARTY THAT ARISE IN CONNECTION WITH THE TOOL (OR THE TERMINATION THEREOF FOR ANY REASON), WHETHER BASED ON CONTRACT, WARRANTY, PRODUCT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHER LEGAL THEORY AND EVEN IF BDO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SUBJECT TO THE FOREGOING LIMITATIONS, YOUR RECOVERY OF ANY DIRECT DAMAGES IS LIMITED TO THE LESSER OF WHAT YOU PAID FOR THE TOOL OR USD $50.00.

Certain jurisdictions do not permit the exclusion of certain warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE JURISDICTIONS, THE FOREGOING EXCLUSIONS AND LIMITATIONS WILL BE ENFORCED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.  

12. Indemnification

To the extent not prohibited by law, you agree to indemnify and hold harmless BDO and its affiliates, employees, officers, directors, other agents, licensors and providers from and against any and all claims,  damages, expenses, costs, including reasonable attorneys’ fees, and other losses resulting directly or indirectly from or arising out of (a) your violation of these Terms, (b) your use of the Tool, (c) Your Content you make available on any of the Tool, or (d) your violation of any other individual’s or entities’ rights or applicable law.

13. Termination

By BDO: BDO may modify, suspend, or terminate the operation of, or access to, all or any portion of the Tool at any time for any reason. Additionally, your individual access to, and use of, the Tool may be terminated by BDO at any time and for any reason.

By you: If you wish to terminate these Terms, you may immediately stop accessing or using the Tool at any time.

Automatic upon breach: Your right to access and use the Tool terminates automatically upon your breach of any of these Terms.

Survival: The disclaimer of warranties, indemnification, limitation of liability, dispute resolution provision, and this provision will survive any termination. The license grants applicable to Your Content are not impacted by the termination of these Terms and shall continue in effect subject to the terms of the applicable license.

14. Dispute Resolution. 

Agreement to Arbitrate

You agree that any dispute, claim or controversy arising out of or relating to these Terms or the Tool (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other Intellectual Property Rights (the action described in clause (ii) is an “IP Action”).

If a decision is issued stating that applicable law precludes enforcement of any limitations set forth in this Agreement to Arbitrate on the right to arbitrate claims on a class or representative basis, or as part of a consolidated proceeding, as to a given claim for relief, then that claim (and only that claim) must be severed from the arbitration and brought in the state or federal courts located in New, York, New York. All other claims will be arbitrated. This “Dispute Resolution” section will survive any termination of these Terms.

Jury and Class Action Waiver

you acknowledge and agree that you are waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless you otherwise agree with us in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding.

Arbitration Rules

The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Procedures and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this Dispute Resolution section. (The AAA Rules are available at https://adr.org/rules or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.

Arbitration Process

A party who desires to begin arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. AAA provides a general form for a Demand for Arbitration and a separate form for Demand for Arbitration for California residents. The arbitrator will either be a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.

Arbitration Location and Procedure 

Unless you agree with us otherwise, the arbitration will be conducted in the county where you reside. If you claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that are submitted to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

Arbitrator’s Decision

The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings on which the arbitrator based the award. Judgment on the arbitration award may be entered in any court with competent jurisdiction. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim.

Fees

Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.

16. Miscellaneous Terms

Choice of law: These Terms (and all Disputes) are governed by and construed by the laws of the State of New York in the United States, not including its choice of law rules.

No waiver: Either party's failure to insist on or enforce strict performance of any of these Terms will not be construed as a waiver of any provision or right.

Severability: If any part of these Terms is held to be invalid or unenforceable by any law or regulation or final determination of the arbitrator, that provision will be deemed severable and will not affect the validity and enforceability of the remaining provisions. If any provision of these Terms are so held invalid or unenforceable by a court of competent jurisdiction, in whole or in part, such provision shall be interpreted so as to remain enforceable to the maximum extent permissible consistent with applicable law and the parties intent.

Relationship of parties: The parties agree that no joint venture, partnership, employment, or agency relationship exists between you and BDO as a result of these Terms or from your use of any of the Tool. You may not enter into any contract on our behalf or bind us in any way.

Assignment: BDO may assign these Terms, in whole or in part, at any time with or without notice to you. You may not assign these Terms or assign, transfer, or sublicense your rights, if any, to access or use Tool or its Content, and any attempt by you to do so is void.

Integration: These Terms and any applicable Customer Agreements constitute the entire agreement between you and BDO relating to this subject matter and supersede any and all prior communications and/or agreements between you and BDO relating to access and use of the Tool.