This Terms of Service Agreement (the “Terms”) is made and entered into by and between you, “Customer” as defined below), and Staxiom, Inc. and its subsidiaries and affiliates (collectively “Staxiom”). These Terms, together with any supplemental agreements or terms are collectively referred to as the “Agreement.” The Agreement governs use of the Staxiom website (https://www.staxiom.com), any associated domains, and sets forth the terms and conditions under which Staxiom agrees to provide Customer with the R&D Tax Credit Platform.
These Terms are applicable to all persons who use or access the R&D Tax Credit Platform (as defined below), in their company’s capacity or in an individual capacity, including authorized users representing the company, its employees, or other persons using or accessing the R&D Tax Credit Platform (collectively “Customer”). Customer’s use of the R&D Tax Credit Platform are each conditioned upon full compliance with the Agreement and all applicable laws, rules, and regulations
If Customer is agreeing to these Terms on behalf of a business or an individual other than Customer, Customer represents and warrants that Customer has authority to bind that business or other individual to this Agreement, and Customer’s agreement to these terms will be treated as the agreement of such business or individual. In that event, “Customer” also refers to that business or individual. By clicking the applicable button or checking the applicable box to indicate Customer’s acceptance of the Agreement, or by signing any supplemental agreement, or by accessing or using the Platform, Customer agrees, effective as of the date of such action, to be bound by the terms of the Agreement.
ARBITRATION NOTICE: SECTION 17 OF THIS AGREEMENT CONTAINS TERMS THAT REQUIRE CUSTOMER AND STAXIOM TO RESOLVE DISPUTES THROUGH FINAL, BINDING ARBITRATION. CUSTOMER UNDERSTANDS THAT: (1) CUSTOMER WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST STAXIOM ON AN INDIVIDUAL BASIS, AND (2) CUSTOMER WAIVES THE RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR SEEK RELIEF IN A COURT OF LAW AND HAVE A JURY TRIAL OF CUSTOMER’S CLAIMS.
Upon Customer’s request for any of the R&D Tax Credit Platform (as defined below), Staxiom will use commercially reasonable efforts to provide the following: (a) reviewing records provided by Customer, such as contracts, invoices, and other contemporaneous documentation supporting the qualifying activities (collectively “Customer Documentation” and further defined herein); (b) interviewing Customer’s employees and/or business personnel (“Customer Interviews”); (c) using the Customer Documentation and Customer Interviews (collectively “Provided Information” as further defined herein) to determine the amount of the credit and to create substantiation documentation; (d) identifying, calculating, and authoring basic qualitative documentation and preparing applicable tax forms (the “Customer Tax Forms”) pertaining to Customer’s available federal and supported state R&D tax credits (“R&D Tax Credits”) (the “Report Service”) and (e) authoring additional qualitative documentation, including Business Component Reports (“Enhanced Documentation”); (individually and collectively, the “R&D Tax Credit Platform”). Staxiom is not responsible for providing any assistance in preparing for or responding to tax audits, examinations, inquiries or communications of any kind from any state or federal tax authority or anyone reasonably believed to represent a state or federal tax authority. Staxiom is not in the business of providing tax or legal advice. Staxiom’s work product created for Customer and all Customer communication should not be considered tax advice. Staxiom encourages Customer to consult a tax advisor or CPA prior to using the R&D Tax Credit Platform and in the event of an audit or examination.
For avoidance of doubt, Customer is solely responsible for all state or federal tax filings, filing decisions, and any communications with any tax authority or agency (or anyone reasonably believed to represent a tax authority or agency), including the contents of any documents or information provided to any tax authority or agency.
Customer acknowledges that only business activities that qualify for R&D Tax Credits are eligible for the R&D Tax Credit Platform. Eligibility requirements for the R&D Tax Credits are established by the IRS, and more information about the R&D Tax Credits, including the IRS eligibility rules (the “Eligibility Criteria”), can be found on the IRS website. Staxiom will undertake an independent assessment of whether a Customer’s business activities (and which specific business activities) are eligible for R&D Tax Credits. In the event that Staxiom determines a Company is not eligible for the R&D Tax Credits, Staxiom shall promptly inform Customer of the same and this Agreement and the R&D Tax Credit Platform shall be terminated, subject to the terms of Section 15 below, and Customer shall not be invoiced for any of the R&D Tax Credit Platform Fees described in Section 4 herein.
By accepting these Terms, Customer acknowledges and agrees to the following:
(a) Instructions: Staxiom may provide Customer with instructions about how to use the R&D Tax Credit Platform. Customer is solely responsible for following those instructions, whether sent by email, by posting on the Platform, or otherwise.
(b) Provided Information: Customer shall provide Staxiom with the necessary Customer Documentation for Staxiom to perform the R&D Tax Credit Platform, which may include: (i) employee W-2 information via Company documents and/or API access to Company’s payroll service API (as applicable); (ii) general ledger information regarding Company contract, supply and lease of computer (costs via connecting to Company’s accounting service API (as applicable); (iii) previously filed tax returns; (iv) invoices and contracts, as necessary, related to contract costs or research expenses; and (v) other contemporaneous documentation supporting the qualification of activities. In addition to Customer Documentation, Customer shall provide information via or during Customer Interviews (collectively Customer Documentation and Customer Interviews are referred to as “Provided Information”). Customer shall be responsible for collecting and submitting this Provided Information to Staxiom. Customer represents that Customer has the authority to share Provided Information with Staxiom, and Customer acknowledges that Customer is solely responsible for the accuracy, currency, and completeness of such Provided Information as further described in Sections 9 and 10 herein. If Customer is an accountant for the Company (each, a “Company Accountant”), then by accepting this Agreement or using the R&D Tax Credit Platform, Customer represents and warrants that the Company has authorized Customer to share such Provided Information with Staxiom on Company’s behalf.
(c) Review and approval: Customer is responsible for reviewing all Customer Tax Forms, reports, summaries, information, documents or other materials (collectively, “Materials'') that Staxiom may submit to Customer for review, and Customer must notify Staxiom of any inaccuracies in the Materials as soon as possible, or within a timeframe specified by Staxiom. If Customer is a Company Accountant, then Customer represents and warrants to Staxiom that Customer is authorized to review the Materials on Company’s behalf. Customer is solely responsible for making Customer’s own decisions on what to include in applicable tax filings and forms. Customer accepts full responsibility for all results, outcomes, and/or consequences of Customer’s use of or reliance on the R&D Tax Credit Platform, including, without limitation, the final R&D Tax Credits awarded by the IRS, and for Customer’s reliance on any of the Materials.
(d) Third party notices: Customer must promptly notify Staxiom of any third-party notices that Customer may receive which could affect Staxiom’s ability to effectively provide the R&D Tax Credit Platform, or which could increase the likelihood that a Claim (as defined below) is brought against Customer or Staxiom or its affiliates in connection with the R&D Tax Credit Platform, e.g. notices from the IRS or other government agencies regarding penalties or errors relating to the R&D Tax Credit Platform.
(e) Communications with tax agencies: Customer is solely responsible for all tax filings, filing decisions, and any communications with any tax authority or agency (or anyone Staxiom reasonably believes to represent a tax authority or agency), including the contents of any documents or information (including any Customer Tax Forms that Customer may choose to file) provided to any tax authority or agency. Staxiom is not responsible for providing any assistance in preparing for or responding to tax audits or examinations, and Customer acknowledges that Staxiom is not in the business of providing professional or legal advice. Staxiom encourages Customer to consult a tax advisor or CPA in the event of an audit or examination.
4. R&D Tax Credit Platform Fees
Staxiom will invoice and Customer agrees to pay the fees associated with the R&D Tax Credit Platform to which Customer has agreed to. These fees may include, without limitation: (a) a one-time eligibility fee (“Eligibility Fee”); (b) a percentage of the R&D Tax Credits identified by Staxiom and available to Customer (“Service Fee”); (c) and/or an annual fee (“Annual Fee”) (collectively, the “R&D Tax Credit Platform Fees”).
From time to time Staxiom may offer discounts on the R&D Tax Credit Platform Fees at its sole discretion. In such cases the discounts shall be confirmed with the Customer in writing on the applicable invoice. In addition, Staxiom may update the R&D Tax Credit Platform Fees at any time.
Staxiom shall invoice Customer for the R&D Tax Credit Platform according to the following invoice schedule:
Customer agrees to reimburse Staxiom for any sales, use, and similar taxes arising from the provision of the R&D Tax Credit Platform that any federal, state, or local governments may impose. In the event that Customer elects to terminate this Agreement in accordance with Section 15 of these Terms, or the Company for whom Customer has requested Staxiom provide the R&D Tax Credit Platform is acquired or undergoes a change in ownership, Customer shall be responsible for payment of the total of the remaining R&D Tax Credit Platform Fees, including any fees based on the unutilized R&D Tax Credits, incorporating any relevant discounts, and Staxiom will invoice Customer for the same in accordance with the terms of this Section 4.
To access or use the R&D Tax Credit Platform, Customer must have an account with Staxiom (an “Staxiom Account”). Customer hereby authorizes Staxiom to obtain and store Customer’s Staxiom Account information as necessary to make the R&D Tax Credit Platform available to Customer.
For information on how Staxiom collects, uses, and discloses information from Customer, please refer to Staxiom’s Privacy Policy (“Privacy Policy”, incorporated herein by reference to https://staxiom.com/privacy). Customer acknowledges and understands that Staxiom may collect, use, and disclose Customer’s information pursuant to the Privacy Policy as it may be updated from time to time.
For the avoidance of doubt, Provided Information includes Customer Documentation and Customer Interviews. Customer is solely responsible for the accuracy, timeliness, and completeness of such Provided Information and for maintaining the accuracy and completeness of such Provided Information. Customer understands that Staxiom will rely on the Provided Information furnished by Customer in performing the R&D Tax Credit Platform. Staxiom is not responsible or liable for any consequences or Claims (as defined below) associated with its provision of the Platform or the R&D Tax Credit Platform. Determining the amount of R&D Tax Credit that the Customer may be eligible to claim in a given tax year (the “Available Credit”) remains solely the responsibility of the Customer.
Customer must promptly notify Staxiom of any changes to the Provided Information, regardless of whether Customer considers changes to the Provided Information to be material. In particular, Customer must promptly notify Staxiom if (i) Customer has changed the employer identification number to which any Available Credit should apply or (ii) Customer has used any portion of its Available Credit against its business income taxes. Staxiom is not responsible or liable for any consequences or Claims (as defined below) arising from Customer’s failure to notify Staxiom of any changes to the Provided Information.
Customer retains all intellectual property rights in and to Customer’s information or data, including Provided Information. Customer grants Staxiom a limited license to use Customer’s information and/or data, including Provided Information, to provide and improve Staxiom Content (as defined below), the Platform, or the R&D Tax Credit Platform. “Staxiom Content” includes text, graphics, images, software, audio, video, works of authorship of any kind, or other materials that Staxiom provides through the Platform or the R&D Tax Credit Platform. Staxiom retains all intellectual property rights in and to Staxiom Content, the Platform, and the R&D Tax Credit Platform. Customer agrees that any feedback or suggestions provided by Customer to Staxiom about Staxiom Content, the Platform, or the R&D Tax Credit Platform (“Feedback”) is given entirely voluntarily, and Staxiom will be free to use, disclose, reproduce, license, or otherwise distribute and exploit such Feedback as it sees fit, entirely without obligation or rdestriction of any kind and without compensating or crediting Customer. Feedback includes, swithout limitation, feedback Customer provides to Staxiom in response to surveys Staxiom conducts, through any available technology, about Customer’s experience. Staxiom retains all intellectual property rights in the Platform.
Customer’s use of the Platform and R&D Tax Credit Platform is entirely at Customer’s own risk. Staxiom is not in the business of providing legal, regulatory, financial, accounting, employment, tax or other professional services or advice. Any information provided by Staxiom via the Platform or the R&D Tax Credit Platform or otherwise is meant for informational purposes only and should not be interpreted as professional advice. Customer should consult a professional that is trained or licensed in the relevant area if Customer needs such assistance.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE PLATFORM AND SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND MADE BY Staxiom. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Staxiom DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DATA LOSS, AND NON-INFRINGEMENT. FURTHERMORE, Staxiom MAKES NO WARRANTIES REGARDING THE ACCURACY, RELIABILITY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR QUALITY OF ANY INFORMATION IN OR LINKED TO THE SERVICES. Staxiom CANNOT GUARANTEE THE ACCURACY OR COMPLETENESS OF CUSTOMER INFORMATION AND Staxiom MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO CUSTOMER INFORMATION. Staxiom DOES NOT WARRANT THAT THE PLATFORM OR SERVICES WILL (I) MEET CUSTOMER’S EXPECTATIONS OR REQUIREMENTS; (II) BE COMPLETELY SECURE OR FREE FROM ERRORS, BUGS, VIRUSES, OR OTHER HARMFUL COMPONENTS; OR (III) BE FREE FROM INTERRUPTION, THEFT, OR DESTRUCTION. IN ADDITION, Staxiom EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR ENSURING THE VALIDITY AND ENFORCEABILITY OF DOCUMENTS THAT ARE ELECTRONICALLY SIGNED VIA THE E-SIGN SERVICE UNDER ANY APPLICABLE U.S. LOCAL, STATE, OR FEDERAL LAWS, OR THE LAWS OF ANY OTHER JURISDICTION.
Customer will indemnify and hold harmless Staxiom, Staxiom’s officers, directors, employees, and agents, Staxiom’s subsidiaries and affiliates, and the officers, directors, employees, and agents of its subsidiaries and affiliates (each an “Indemnified Party” and collectively the “Indemnified Parties”), from and against any claims, disputes, demands, liabilities, damages, losses, costs, judgements, penalties, fines, and expenses (including, without limitation, reasonable legal and accounting fees) (collectively, the “Claims”), arising out of or in any way connected with (i) Customer’s access to or use of the Platform or R&D Tax Credit Platform; (ii) Customer’s violation or alleged violation of this Agreement; (iii) Customer’s violation or alleged violation of any third party right, including without limitation any right of privacy or publicity, or any right provided by any labor or employment law, rule, or regulation, or any intellectual property right; (iv) Customer’s violation or alleged violation of any applicable law, rule, or regulation; (v) Customer’s gross negligence, fraudulent activity, or willful misconduct; (vi) Staxiom’s or any other Indemnified Party’s use of or reliance on information or data, including Provided Information, furnished by Customer, an employee or independent contractor of Customer, in connection with this Agreement; (vii) actions or activities that Staxiom or any other Indemnified Party undertakes in connection with the R&D Tax Credit Platform or this Agreement at the direct request or instruction of anyone that Staxiom or any other Indemnified Party reasonably believes to be Customer (each such action or activity, a “Requested Action”); (viii) Staxiom’s or any other Indemnified Party’s use of or reliance on information or data resulting from such Requested Actions; or (ix) Customer’s failure to properly follow Staxiom’s instructions with respect to the R&D Tax Credit Platform.
Customer and Staxiom are separate and distinct legal entities. Nothing in this Agreement is meant to create or imply any agency, employment or other relationship by or between Staxiom and Customer. It is hereby acknowledged that Staxiom is not an employer, agent, subsidiary or other relation to Customer. Likewise, it is hereby acknowledged that Customer is not an employee, agent, subsidiary or other relation to Staxiom.
NEITHER Staxiom, NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE PLATFORM OR SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, OR SYSTEM FAILURE, OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM OR SERVICES WHETHER SUCH DAMAGES ARE BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT Staxiom HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO CUSTOMER. IN NO EVENT WILL Staxiom’S TOTAL LIABILITY FOR ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM OR SERVICES EXCEED THE AMOUNTS CUSTOMER HAS PAID TO Staxiom FOR USE OF THE SERVICES IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE APPLICABLE CLAIM. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN Staxiom AND CUSTOMER.
The R&D Tax Credit Platform and the Agreement will continue until terminated by either party. Customer may terminate the R&D Tax Credit Platform and the Agreement by giving Staxiom at least ninety (90) days prior written notice, and shall complete the payment of remaining R&D Tax Credit Platform Fees as set forth in Sections 5 and 6 herein. Staxiom may terminate the R&D Tax Credit Platform and the Agreement by giving Customer at least thirty (30) days’ prior written notice. In addition, Staxiom may immediately suspend or restrict Customer’s Staxiom Account; suspend or restrict Customer’s access to the R&D Tax Credit Platform or immediately terminate the R&D Tax Credit Platform and this Agreement, in each case with or without notice to Customer, in the event that: (i) Staxiom has any reason to suspect or believe that Customer may be in violation of the Agreement; (ii) Staxiom determines that Customer’s actions are likely to cause legal liability for or material negative impact to Staxiom; (iii) Staxiom believes that Customer has misrepresented any data or information or that Customer has engaged in fraudulent or deceptive practices or illegal activities; (iv) Staxiom has determined that Customer is behind in payment of fees for the R&D Tax Credit Platform and Customer has not cured such non-payment within five (5) days of Staxiom providing Customer with notice of the non-payment; or (v) Customer files a petition under the U.S. Bankruptcy Code or a similar state or federal law, or a petition under the U.S. Bankruptcy Code or a similar state or federal law is filed against Customer. Furthermore, while Staxiom strives to support a multitude of business and organization types, in certain unique situations, if Staxiom cannot support the R&D Tax Credit Platform for Customer’s business or organization type, or if the Eligibility Criteria are not met, Staxiom may immediately terminate the R&D Tax Credit Platform and this Agreement upon written notice to Customer.
In the event that Customer elects to terminate this agreement as described above, or in the event that Customer experiences a change in ownership such as a sale or acquisition, Staxiom will invoice Customer for the total of the remaining R&D Tax Credit Platform Fees, including any fees based on the unutilized R&D Tax Credits, incorporating any relevant discounts.
The termination of any of the R&D Tax Credit Platform or the Agreement will not affect Customer’s or Staxiom’s rights with respect to transactions which occurred before termination. Staxiom will have no liability for any costs, losses, damages, penalties, fines, expenses, or liabilities arising out of or related to Staxiom’s termination of the Agreement. Any sections of the Agreement which by their nature should survive and the following sections of these Terms will survive and remain in effect, including Sections 5 and 6 (to the extent that there are any unpaid fees for services rendered as of the time of termination of these Terms), 7, 8, and 11 through 18.
Upon termination of the R&D Tax Credit Platform and/or termination of the Agreement, Customer’s right to access and use such terminated R&D Tax Credit Platform will automatically terminate.
Staxiom may modify the Agreement at any time, in its sole discretion and shall post the modified Agreement on the Platform. It is important that Customer reviews any modified Agreement because Customer can continue to use the R&D Tax Credit Platform only if Customer accepts the modified Agreement, indicating to Staxiom that Customer agrees to be bound by the modified Agreement. If Customer does not agree to be bound by the modified Agreement, then Customer may not continue to use the R&D Tax Credit Platform. Because the R&D Tax Credit Platform may evolve over time, Staxiom may change or discontinue all or any part of the R&D Tax Credit Platform at any time and without notice, at Staxiom’s sole discretion.
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS AND INCLUDES, AMONG OTHER THINGS, A CLASS ACTION WAIVER. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS PROVISION CAREFULLY AND UNDERSTAND THAT IT LIMITS YOUR RIGHTS IN THE EVENT OF A DISPUTE BETWEEN YOU AND US.
Informal Dispute Resolution. “Dispute” includes any past, present, or future dispute, claim (including initial claims, counter-claims, third-party claims, or otherwise), or controversy relating to or arising out of these Terms, the Platform or Services, whether in law, equity, or otherwise, including the validity or enforceability of this Section 17 or the Terms. If a Dispute arises, our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide a neutral and cost effective means of resolving the Dispute quickly. Before filing any Dispute in arbitration or, for an excluded matter, in court, you will try to resolve the specific issue underlying the Dispute informally by contacting our customer service team. We will also undertake reasonable efforts to contact you to resolve any Dispute informally before taking any formal action. If your Dispute is not resolved within sixty (60) days after you contact our customer service team, you or Staxiom may initiate a formal action as described in this Section 17.
Election to Arbitrate. You and Staxiom agree that the sole and exclusive forum for resolution of a Dispute will be final and binding arbitration pursuant to this Section 17 (the “Arbitration Provision”), unless your Dispute is subject to an explicit exception to this Arbitration Provision. The scope of this Arbitration Provision is to be given the broadest possible interpretation that is enforceable. Notwithstanding the foregoing, both you and Staxiom retain the right: (1) to bring an individual action in small claims court (a “Small Claims Action”); or (2) 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 intellectual property rights (an “IP Protection Action”).
Judicial Forum for Disputes. In the event that (i) you or we bring a Small Claims Action, or IP Protection Action; or (ii) this Section 17 is found not to apply, the exclusive jurisdiction and venue of any Dispute will be the state and federal courts located in the County of San Francisco, CA and you and Staxiom waive any objection to jurisdiction and venue in such courts. You and we both further agree to waive our right to a jury trial. WAIVER OF RIGHT TO LITIGATE. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE DISPUTES IN A COURT BEFORE A JUDGE OR JURY UPON ELECTION OF ARBITRATION BY ANY PARTY, EXCEPT AS EXPRESSLY PROVIDED IN SECTION 17.B ABOVE.
NO CLASS ACTIONS. You and Staxiom agree that the arbitration of any Dispute shall only proceed on an individual basis. Neither you nor Staxiom may bring a Dispute as a part of a class, group, collective, coordinated, consolidated or mass arbitration (each, a “Collective Arbitration”). Without limiting the generality of the foregoing, a Dispute against Staxiom will be deemed a Collective Arbitration if (i) two (2) or more similar Disputes for arbitration are filed concurrently by or on behalf of one or more claimants; and (ii) counsel for the claimants are the same, share fees or coordinate across the arbitrations. “Concurrently” for purposes of this provision means that both arbitrations are pending (filed but not yet resolved) at the same time. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER YOU NOR Staxiom SHALL BE ENTITLED TO CONSOLIDATE, JOIN OR COORDINATE DISPUTES BY OR AGAINST OTHER INDIVIDUALS OR ENTITIES, OR ARBITRATE OR LITIGATE ANY DISPUTE IN A REPRESENTATIVE CAPACITY, INCLUDING AS A REPRESENTATIVE MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. IN CONNECTION WITH ANY DISPUTE, ANY AND ALL SUCH RIGHTS ARE HEREBY EXPRESSLY AND UNCONDITIONALLY WAIVED. ANY CHALLENGE TO THE VALIDITY OF THIS SECTION 17.F SHALL BE DETERMINED EXCLUSIVELY BY THE ARBITRATOR. Arbitration Procedures. The party initiating arbitration shall do so with Judicial Alternatives and Mediation Services (“JAMS”). Disputes involving claims and counterclaims with an amount in controversy under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’ most current version of the Streamlined Arbitration Rules; all other Disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures (the applicable rule set, the “JAMS Rules”). If you have any questions concerning JAMS or would like to obtain a copy of the JAMS Rules, you may call 1(800) 352-5267 or visit their web site at: www.jamsadr.com. In the case of a conflict between the JAMS Rules and this Arbitration Provision, this Arbitration Provision shall control, subject to countervailing law, unless all parties to the arbitration consent to have the JAMS Rules apply. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the JAMS Rules. Arbitration will proceed on an individual basis and will be handled by a sole arbitrator.
A single arbitrator will be mutually selected by Staxiom and Member and shall be (i) a practicing attorney licensed to practice law in California or a retired judge; and (ii) selected from the arbitrators on the JAM’s roster of commercial dispute arbitrators who have a background in payroll, health insurance, human resources, and/or online commerce law (or if there are no such arbitrators, then from the arbitrators on the JAM’s roster of commercial dispute arbitrators) (collectively, the “Arbitrator Requirements”). If Staxiom and Member cannot mutually agree upon an arbitrator within ten (10) days of the opposing party’s receipt of the Demand for Arbitration from the Claimant, then JAMS shall appoint a single arbitrator in accordance with JAMS rules that satisfies the Arbitrator Requirements.
Notwithstanding any language to the contrary in this Section 17.G, if a party seeks injunctive relief that would significantly impact other Members as reasonably determined by either party, the parties agree that such arbitration will proceed on an individual basis but will be handled by a panel of three (3) arbitrators. Each party shall select one arbitrator, and the two party-selected arbitrators shall select the third, who shall serve as chair of the arbitral panel. That chairperson shall meet the Arbitrator Requirements. In the event of disagreement as to whether the threshold for a three-arbitrator panel has been met, the sole arbitrator appointed in accordance with this Section 17.G shall make that determination. If the arbitrator determines a three-person panel is appropriate, the arbitrator may – if selected by either party or as the chair by the two party-selected arbitrators – participate in the arbitral panel. Except as and to the extent otherwise may be required by law, the arbitration proceeding and any award shall be confidential. This Arbitration Provision shall be construed under and be subject to the Federal Arbitration Act, notwithstanding any other choice of law set out in these Terms.
Arbitration Location. Unless the arbitrator determines that an in-person hearing is necessary or you and Staxiom otherwise agree, the arbitration may be conducted via videoconference, telephonically or via other remote electronic means. If your Dispute does not exceed $10,000 not inclusive of attorneys’ fees and interest, then the arbitration will be conducted solely on the basis of the documents that you and Staxiom submit to the arbitrator, unless the arbitrator determines that a videoconference, telephonic or in-person hearing is necessary. If your Dispute exceeds $10,000, your right to a hearing will be determined by the JAMS Rules. Subject to such 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.
Arbitration Fees. If we elect arbitration, we shall pay all the administrator's filing costs and administrative fees (other than hearing fees). If you elect arbitration, filing costs and administrative fees (other than hearing fees) shall be paid in accordance with the rules of the administrator selected, or in accordance with countervailing law if contrary to the administrator's rules.
Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the administrator rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. Survival and Severability of Arbitration Provision. This Arbitration Provision shall survive the termination of these Terms. With the exception of Section 17.E, if a court decides that any part of this Arbitration Provision is invalid or unenforceable, then the remaining portions of this Arbitration Provision shall nevertheless remain valid and in force. In the event that a court finds that all or any portion of Section 17.E to be invalid or unenforceable, then the entirety of this Arbitration Provision shall be deemed void and any remaining Dispute must be litigated in court pursuant to Section 17.C.
Staxiom is not responsible or liable for any delays or failures in performance from any cause beyond Staxiom’s control, including, but not limited to, acts of God, changes to laws or regulations, embargoes, wars, terrorist acts, acts or omissions of third-party technology providers, riots, fires, earthquakes, floods, power outages, strikes, weather conditions, acts of hackers, acts of internet service providers, acts of any other third party, or acts or omissions of Customer or Customer’s employees, contractors, or authorized representatives.
This document and all Agreements, Statements of Work and other Staxiom documents are governed by the laws of the State of California.
These Terms, and any amendments hereto, by whatever means accepted, will be treated in all manner and respects as an original contract and shall be considered to have the same binding legal effect as if it were an original signed version thereof, delivered in person. Neither party hereto shall argue that a contract was not formed hereunder based on either (i) the use of electronic means to deliver a signature or to indicate acceptance of these Terms or (ii) the fact that any signature or acceptance of these Terms were transmitted or communicated through electronic means; and each party forever waives any related defense.
This Agreement constitutes the entire agreement between Staxiom and Customer regarding the Platform, the R&D Tax Credit Platform, and Staxiom Content, and replaces all prior understandings, communications, and agreements, oral or written, regarding this subject matter. This Agreement may be modified only by a written amendment signed by the parties or as otherwise provided in Section 16. If any part of this Agreement is deemed to be unenforceable or invalid, that section will be removed without affecting the remainder of the Agreement. The remaining terms will be valid and enforceable. Customer may not assign this Agreement, by operation of law or otherwise, without Staxiom’s prior written consent. Any attempt by Customer to assign or transfer this Agreement, without such consent, will be null. Staxiom may freely assign or transfer this Agreement without restriction. The provisions of this Agreement shall inure to the benefit of, and be binding upon, the parties and their respective successors and permitted assigns.
Any notices or other communications provided by Staxiom under this Agreement, including those regarding modifications to this Agreement, will be given: (i) via email; or (ii) by posting to the Platform. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is given. For notices made by posting to the Platform, the date of such posting will be deemed the date that notice is given. Staxiom’s failure to enforce any right or provision of this Agreement will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Staxiom. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
If Customer has any questions about this Agreement or the R&D Tax Credit Platform, Customer may contact Staxiom at help@staxiom.com. Staxiom is located at 407 W. Imperial Highway, Ste. H345, Brea, CA 92821. If Customer is a California resident, Customer may report complaints regarding the R&D Tax Credit Platform by contacting the Complaint Assistance Unit of the Division of Consumer R&D Tax Credit Platform of the California Department of Consumer Affairs at:
Department of Consumer Affairs
Consumer Information Division
1625 North Market Blvd., Suite N 112
Sacramento, CA 95834
Phone Number: (800) 952-5210