Entity Management End User Terms of Service

Middesk Entity Management is a product designed to support entrepreneurs and businesses by facilitating access to the building blocks of a business across the entity lifecycle, from formation through wind-down. These may include: (i) services related to incorporation, including the formation of business entities with state Secretaries of State or analogous filing offices, obtainment of an Employer Identification Number (EIN) from the Internal Revenue Service (whether by paper Form SS-4 submission or through the IRS online application), foreign-qualification filings to register a domestic entity to do business in additional states, and post-formation compliance filings such as annual reports, statements of information, and franchise tax filings (collectively, “Incorporation Services”); (ii) services related to corporate registration and qualification, such as registration for certain types of tax withholding and unemployment insurance (collectively with Incorporation Services, “Registered Agent Services”); (iii) the designation of a registered agent (the “Registration Services”); (iv) the integration of the Registration Services and the Registered Agent Services, which may include providing temporary managed mail and managed email solutions (“Integration Services”); (v) services related to exiting a state (without dissolving your entity), including cancellation of state and local tax accounts (including withholding, unemployment insurance, and income tax accounts), foreign-qualification withdrawals, Registered Agent termination, and the related final state compliance filings such as final annual reports and final franchise tax returns (collectively, “State Tax Closure Services”); (vi) services related to dissolving a business entity, including articles of dissolution or analogous closure filings with the Secretary of State and the final compliance filings required to effect the dissolution (collectively, “Entity Dissolution Services”), which Entity Dissolution Services are offered only if and to the extent we make them available to you and you have engaged us to provide them; ; (vii) limited administrative submission of forms to federal, state, and local agencies on your behalf, including, by way of example, IRS Section 83(b) election filings, doing-business-as or fictitious name filings, federal contractor registrations, and similar form-pushing services where our role is strictly administrative (collectively, “Administrative Filing Services”); (viii)  customer support regarding the foregoing (“Customer Support”); and (ix) other services and tools, including tools provided by us and by third parties as Middesk’s network of partners and collaborators grows over time (collectively, the “Services”). The third parties described above are collectively referred to in these Terms as “Service Providers”.

General Terms

These Terms of Service (“Terms”) are a contract between the legal entity that seeks the Services (“Company”) and Middesk Inc. (“Middesk”, “we”, “our”, or “us”). Company is a party to this agreement from the time it agrees to these Terms. As used in these Terms, the terms “you”, “your”, and “user” refer to Company. All Services are provided by us through our collaboration with the Service Providers as described either in these Terms or in any communications sent to you by Middesk (collectively, “Middesk Documentation”). By agreeing to these Terms and using the Services, you acknowledge and agree that the Services are for commercial purposes only and you will not use the Services for personal, family, or household use. The person agreeing to these Terms on your behalf represents that they are the age of majority in their respective state or older, that all the information provided to us is accurate and complete, that they are authorized to agree to these Terms on Company’s behalf (such persons may include the owner, corporate officer, partner, managing member, Chief Financial Officer, or Chief Executive Officer), and that they agree to the grants of authority in Section 4 of these Terms. 

1. Relationship to Other Agreements

Certain provisions of the website terms of use (available at www.middesk.com/terms) and privacy policy (available at www.middesk.com/privacy) (collectively, the “Website Terms”) are incorporated into these Terms by reference. If there is any conflict between the Website Terms and these Terms, these Terms control.

2. The Services and Service Providers

a. All Services. The Services will be provided to you by Middesk and can include Incorporation Services, Registration Services, Registered Agent Services, Integration Services, Customer Support, and any other services that may be provided in partnership with Service Providers. You acknowledge and agree that: (i) we may perform portions of the Services through Service Providers, including third-party formation agents, filing agents, EIN obtainment services, foreign-qualification providers, the Registered Agent, managed mail and correspondence providers, and analogous service providers; (ii) certain Service Providers (including the Registered Agent and, in some jurisdictions, formation agents) may have a direct contractual relationship with you, and you may be required to accept the Service Provider’s own terms of service or related agreement as a condition of receiving the relevant Service; and (iii) we may sub-delegate to any Service Provider any portion of the authority granted to us under Section 4 to the extent necessary or helpful for the Service Provider to perform the Services for which it is engaged.

1. Information Required. Before we begin providing Services, you must give Middesk all information necessary to perform the Services. You represent and warrant that you are responsible for ensuring that all information that you provide to us is truthful, accurate, complete, and that you have the proper licensure and consent, as applicable, to provide the information to us. More specifically, you must provide, and we will collect, detailed information about your business, that may include but is not limited to: (i) details on your product, business model, and flow of funds; (ii) information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with an individual (“Personal Information”) about each of your representatives, employees and beneficial owners; (iii) business information for both any newly formed U.S. entity as well as any U.S. or foreign parent entity including legal name, address, tax identification number, and constituent documents; and (iv) where applicable, prior incorporation documents, prior EIN or other tax identification numbers, prior registered agent information, and prior filings with state or federal agencies (collectively, “Company Data”). We may also require you to upload documents to our website. This may include verification of personal identification and beneficial ownership, denied persons or other sanction checks, and other efforts to verify the legitimacy of business entities and the associated beneficial owners. Where practical, we will attempt to verify the information you provide using various programmatic and manual methods of review, but Middesk carries no obligation or liability relating to the accuracy or completeness of any Company Data or other Company information provided to Middesk. Upon review of information you provide to us, or at any time thereafter, we reserve the right, in our sole discretion, to choose not to provide any aspect of the Services to you. You will have no recourse and we will have no liability if, upon review of information you provide to us, or at any time thereafter, either we or any Service Providers, or our partners or collaborators decline to do business with you.

1. New Services. If you access any new or updated features, communications, or services through your Middesk account, such use will be subject to these Terms unless explicitly stated otherwise.
2. Limitations. You acknowledge, understand, and agree that: (i) we are not a law firm nor an accounting firm and do not provide legal, tax or accounting advice of any kind whatsoever; (ii) Company is solely responsible for all corporate, tax, securities and other legal reporting, payment and compliance aspects of your personal and business activities; (iii) all information, forms, and materials provided through the Services are provided to you for informational and educational purposes only and do not constitute tax or legal advice; and (iv) nothing in the Middesk Documentation, website, platform, or these Terms creates an attorney-client relationship, and communications with us are not protected by attorney-client privilege. If you require legal advice at any time, you should consult with a licensed attorney.
3. Compliance with Applicable Law. Various laws, rules and regulations apply to the Services (“Applicable Law”), and you agree to comply with Applicable Law related to your use of the Services at all times, including the sanctions laws of the United States as administered by the Office of Foreign Asset Controls, and you must not use the Services in connection with any unlawful gambling, unlawful internet gambling, or other “restricted transactions” under the federal Unlawful Internet Gambling Enforcement Act of 2006 or any state laws.

b. Incorporation Services. In addition to the terms of subsection a., as part of the Incorporation Services, you authorize Middesk to: (i) prepare and submit formation filings (including articles of incorporation, articles of organization, certificates of formation, or analogous instruments) with the Secretary of State or analogous filing office of any U.S. state or territory you designate; (ii) apply for an Employer Identification Number from the Internal Revenue Service on Form SS-4 or any successor form or relevant portal; (iii) prepare and submit foreign-qualification filings to register your domestic entity to do business in additional U.S. states or territories; and (iv) prepare and submit post-formation compliance filings, including annual reports, statements of information, and franchise tax filings, as you may designate from time to time. You acknowledge and agree that: (a) Middesk does not provide legal, tax, or formation advice (including with respect to the choice of entity type, jurisdiction of formation, or state in which to qualify); (b) the form of organizational documents used by Middesk in connection with Incorporation Services is a standard form and may not be appropriate for all businesses or owners; (c) post-formation compliance filings may have hard statutory deadlines determined by the relevant Agency, and your continued use of Middesk’s post-formation compliance services is subject to your timely provision of the information and authorizations Middesk requires to make such filings; and (d) Middesk has no obligation to monitor your independent compliance with corporate, tax, or other legal obligations beyond those filings that you have expressly engaged Middesk to make on your behalf.

c. Registered Agent Services. In addition to the terms of subsection a., as part of the Registered Agent Services, you authorize the registered agent designated by us from time to time to serve as your registered agent (“Registered Agent”). Upon request, we tell you the identity of the Registered Agent and, prior to the provision of certain Registration Services, you may be required to accept the terms of service and any related agreements with the designated Registered Agent. Further, as a requirement for your continued use of the Service, we may require that you work with a new registered agent. Such terms of service and any related agreements will govern the relationship between you and the Registered Agent. You are solely and exclusively responsible for updating your address, contact, and any other business information with the Registered Agent through your Middesk account or by contacting us at [email protected]. 

If your entity is dissolved, either voluntarily or involuntarily, it is your responsibility to notify us of this dissolution so that we may inform the Registered Agent of this fact. If you cancel the Registered Agent’s appointment, or the appointment is otherwise terminated, prepaid fees are non-refundable, including for any period between termination and appointment of a new Registered Agent. If you do not make full payment when due, your Registered Agent services may be terminated. You assume all risk, and neither Middesk nor the Registered Agent will be responsible for any loss or inconvenience resulting from termination of Registered Agent Services. You understand that there is a fee associated with the termination of Registered Agent Services, and that you will be responsible for such fee upon the termination of the Registered Agent Services.

Physical Mail; Retention. Where we, the Registered Agent, or a managed mail Service Provider receive physical mail on your behalf (whether under the Registered Agent Services or the managed mail solution described in the Integration Services), we will make an electronic copy available to you and may retain the physical item for up to thirty (30) days after receipt, after which we may destroy or otherwise dispose of it. If you need a physical copy, you are responsible for requesting the return or physical forwarding of any item within twenty one (21) days of the electronic copy becoming available; if you do not make such a request within that period, we have no obligation to retain, store, forward, or return any physical item. Nothing in this paragraph reduces the Registered Agent’s obligation under applicable law to forward or notify you of service of process or other time-sensitive legal documents before any disposal.

d. State Tax Closure Services. The State Tax Closure Services allow you to exit a state without dissolving your entity; dissolving your entity is a separate Service addressed in subsection e. In addition to the terms of subsection a., as part of the State Tax Closure Services, you authorize us to: (i) prepare and submit cancellation forms for state and local tax accounts (including but not limited to, withholding, unemployment insurance, and income tax accounts) you have engaged us to cancel; (ii) prepare and submit foreign-qualification withdrawals in states where your entity has previously been qualified; (iii) coordinate Registered Agent termination; and (iv) prepare and submit the final state compliance filings required to close such accounts or withdraw such qualifications (such as final state annual reports and final franchise tax returns). You acknowledge and agree that: (a) cancellation of tax accounts, foreign-qualification withdrawals, and final compliance filings often require that all preceding returns have been filed and all amounts owed have been paid, and you are solely responsible for ensuring that final returns are accurate and complete and that all final amounts owed (including final tax, penalties, and interest) are paid; (b) final compliance filings have hard statutory deadlines determined by the relevant Agency, and your continued use of our State Tax Closure Services is subject to your timely provision of the information and authorizations we require to make such filings; and (c) we have no obligation to advise you on whether or when to dissolve, withdraw, or terminate any account, registration, or appointment, and we provide the State Tax Closure Services purely on the basis of your election to use them.

e. Entity Dissolution Services. The Entity Dissolution Services allow you to dissolve your entity. The Entity Dissolution Services are offered only if and to the extent we make them available to you and you have engaged us to provide them, as reflected on an Order Form or in your Middesk account; if you have not engaged the Entity Dissolution Services, this subsection does not apply to you. In addition to the terms of subsection a., as part of the Entity Dissolution Services, you authorize us to: (i) prepare and submit articles of dissolution or analogous closure filings with the Secretary of State or analogous filing office; and (ii) prepare and submit the final compliance filings required to effect the dissolution. Dissolving your entity does not by itself close your state or local tax accounts or withdraw your foreign qualifications, which are addressed by the State Tax Closure Services in subsection d. You acknowledge and agree that: (a) dissolution and its final compliance filings often require that all preceding returns have been filed and all amounts owed have been paid, and you are solely responsible for ensuring that final returns are accurate and complete and that all final amounts owed (including final tax, penalties, and interest) are paid; (b) these filings have hard statutory deadlines determined by the relevant Agency, and your continued use of the Entity Dissolution Services is subject to your timely provision of the information and authorizations we require to make such filings; and (c) we have no obligation to advise you on whether or when to dissolve your entity, and we provide the Entity Dissolution Services purely on the basis of your election to use them.

f. Administrative Filing Services. In addition to the terms of subsection a., as part of the Administrative Filing Services, you authorize us to submit, on your behalf, completed forms and accompanying materials to the federal, state, or local agency you designate, including (by way of example) IRS Section 83(b) election forms, doing-business-as or fictitious name filings, federal contractor registrations, and similar form-pushing services. You acknowledge and agree that: (a) our role with respect to Administrative Filing Services is strictly administrative and limited to (i) facilitating provision of the relevant form, (ii) submitting (by mail, e-file, or other agreed delivery method) the completed form on your behalf, and (iii) obtaining and delivering proof of mailing or filing; (b) we do not advise on whether to make any election, the substance of any election, the timing of any election, the tax or legal consequences of any election, or the completeness or accuracy of any information you provide in connection with any Administrative Filing Service; (c) certain Administrative Filings (including IRS Section 83(b) election filings, which have a non-extendable 30-day deadline from the date of the relevant property transfer under 26 U.S.C. § 83(b) and Treasury Regulation § 1.83-2) carry hard statutory deadlines for which you are solely responsible, including identifying the triggering event, calculating the deadline, and providing us with the completed form and all required materials sufficiently in advance of the deadline to permit us to make the Submission; and (d) we strongly recommend that you consult with a licensed attorney or tax advisor before making any tax election or filing for which professional advice would ordinarily be sought.

g. Cooperation with Middesk: You agree to respond in a timely and accurate fashion to requests from Middesk for records and data necessary for Middesk to perform its services.

h. Setup-and-Handoff Nature of the Services; Your Continuing Obligations. You acknowledge and agree that, with the exceptions identified in the next paragraph, the Services are setup, establishment, state tax closure, entity dissolution, or one-time administrative Services that conclude on agency confirmation (or, in the case of a Failed Submission as defined in Section 5.2, on Submission). With respect to Registration Services, Incorporation Services (other than post-formation compliance Services you have subscribed to under a separate Order Form), State Tax Closure Services, Entity Dissolution Services, and Administrative Filing Services, once we have obtained agency confirmation of the relevant filing, registration, account creation, account cancellation, dissolution, or election (or, in the case of a Failed Submission, on Submission), our performance with respect to that Service is complete and we have no continuing obligation to monitor, maintain, file, pay, communicate with the agency, or otherwise act on your behalf with respect to such account, registration, filing, election, or wind-down event. You are solely responsible for all post-handoff activities relating to such matters, including ongoing filings, payments, address changes, beneficial-owner updates, renewals, responses to agency communications received after our handoff, and all other obligations imposed by applicable law on the holder of the account, registration, filing, or election, or on the dissolved or wound-down entity.

The following Services are continuing Services and are not subject to the setup-and-handoff treatment in the preceding paragraph, for so long as you have subscribed to them on an Order Form (or via your Middesk account) and remain current on Fees: (i) Registered Agent Services; (ii) post-formation compliance Services (including annual reports, statements of information, and franchise tax filings); and (iii) Integration Services such as managed mail and managed email.

i. Statutory Deadlines. Many continuing Services (including post-formation compliance Services), certain State Tax Closure Services, and Entity Dissolution Services (in particular final annual reports and final franchise tax returns), and Administrative Filing Services (in particular IRS Section 83(b) election filings, which have a non-extendable 30-day deadline from the date of the relevant property transfer under 26 U.S.C. § 83(b) and Treasury Regulation § 1.83-2) are tied to statutory deadlines set by the relevant agency. Our ability to meet any such statutory deadline depends on your timely provision of all information, authorizations, payments, completed forms, and Pass-Through Fees necessary for us to make the relevant Submission. We will, where commercially reasonable, use commercially reasonable efforts to communicate information-needed deadlines to you in advance of the statutory deadline, but if you fail to provide the required information, authorizations, payments, completed forms, or Pass-Through Fees by the date we reasonably require, we have no liability for any failure to meet the statutory deadline, and any resulting agency penalties, late fees, loss of good standing, administrative dissolution, invalidated election, adverse tax consequences, or other adverse consequences are your sole responsibility. With respect to Administrative Filing Services in particular, you acknowledge that we do not track the events that trigger the statutory deadline (such as the date of a property transfer for Section 83(b) purposes), and you are solely responsible for identifying the triggering event, calculating the deadline, and providing us with the completed form and all required materials sufficiently in advance of the deadline to permit us to make the Submission.

3. Use of Company Data and Data Protection; Privacy

Protecting, securing, and maintaining the information processed and handled through the Services is one of our top priorities, and it should be one of yours, too. This section describes our respective obligations when handling and storing information connected with the Services.

a. Data Use: You consent to our disclosure of the Company Data you provide to us including your name and address, and information about the transactions that you process through the Services to other Service Providers, and allow us to act as your attorney-in-fact to sign documents on behalf of your Company to facilitate providing the Services to you as set forth in Section 4. You also consent to our and the Service Providers’ use of Company Data, including Personal Information, provided to or collected by us as part of (i) providing the Services, (ii) for internal analyses and fraud monitoring, aggregated and anonymized reporting, to verify and re-verify your identity, including but not limited to the nature and ownership of your business and the risk of doing business with you, (iii) in connection with improving and supplementing Middesk's databases, including training its machine learning algorithms, used in connection with Middesk products and solutions, including the Services, and (iv) as permitted by Middesk’s Privacy Policy, available at www.middesk.com/privacy.  In the event of a conflict between these Terms and the Middesk Privacy Policy, these Terms will control.

b. Confidentiality: We will maintain Company Data in our possession as your confidential information, and will only use such Company Data as permitted by these Terms, or as otherwise directed to or consented to by you through an agreement with a third-party service provider. You will maintain any data you receive through the Services that is not Company Data as our confidential information using measures at least as protective as those pertaining to your own confidential information, may not disclose or distribute any such data, and you will only use such data in conjunction with the Services for your internal business use and as permitted by these Terms or by other agreements between you and us. 

c. Privacy: Protection of Personal Information is very important to us. The Middesk Privacy Policy explains how and for what purposes we collect, use, retain, disclose, and safeguard the Personal Information you provide to us. You agree to review the terms of our Privacy Policy, which we update from time to time. We may collect additional data about you from Service Providers regarding your use of their services to enhance the Services we provide to you. The data we may receive varies by provider and is controlled by that provider. The collection, sharing and use of data by our Service Providers is governed by their respective privacy policies. Our use of data we receive about you from Service Providers is governed by these Terms and our Privacy Policy. You affirm that you are now and will continue to be compliant with all Applicable Law governing privacy and your use of Company Data, including Personal Information, that you provide to us or access through your use of the Services. You also affirm that you have obtained all necessary rights and consents under Applicable Law to disclose to us — or allow us to collect, use, retain, and disclose — any Personal Information that you provide to us or authorize us to collect, including data that we may collect using cookies or other similar means. 

d. Breach Notice. We will comply with our obligations under Applicable Law if we become aware that we caused a loss, theft, or breach of Personal Information. If required by Applicable Law, we will also notify you and provide you with sufficient information regarding the loss, theft or breach.

4. Power of Attorney and Appointment of Agent:

1. Purpose and Limited Scope. You hereby appoint Middesk, Inc. and any employee or designated representative thereof, as your true and lawful attorney-in-fact to act in your name, place and stead for the limited purposes set forth below:

1. For the purposes of incorporation, registration, compliance, reporting, account maintenance, filings, State Tax Closure, Entity Dissolution, agency account management and any other administrative or regulatory matter relating to the Services, including: (i) preparing, executing, and submitting formation filings (such as articles of incorporation, articles of organization, certificates of formation, or analogous instruments) with the Secretary of State or analogous filing office of any U.S. state or territory; (ii) preparing, executing, and submitting an application for an Employer Identification Number on Form SS-4 (whether by paper Form SS-4 or through the IRS online application, and any successor form or process) with the Internal Revenue Service; (iii) preparing, executing, and submitting foreign-qualification filings with the Secretary of State or analogous filing office of any U.S. state or territory; (iv) preparing, executing, and submitting post-formation compliance filings, including annual reports, statements of information, franchise tax filings, and other periodic filings, with the Secretary of State, Department of Revenue, Department of Taxation, or analogous filing office of any U.S. state or territory; (v) setting up, maintaining, and closing accounts with state and certain agencies, including for withholding tax, unemployment insurance, income tax, and other state and local tax purposes; (vi) designating, replacing, and acting in coordination with the Registered Agent, including termination of any prior or current Registered Agent appointment; (vii) preparing, executing, and submitting (A) State Tax Closure filings, including closure filings, cancellation forms for state and local tax accounts, foreign-qualification withdrawal filings, and final compliance filings, and (B) where you have engaged the Entity Dissolution Services, articles of dissolution or analogous closure filings with the Secretary of State and the final compliance filings required to effect the dissolution; and (viii) submitting completed forms for any Administrative Filing Service you have engaged us to perform, including IRS Section 83(b) election forms, doing-business-as or fictitious name filings, federal contractor registrations, and similar form-pushing services, in each case strictly on the limited administrative basis described in Section 2.f. 

1. To interact, communicate, and transact business with state, local, and federal government agencies on matters relating to the Services, including:

1. Departments of Revenue,

1. Departments of Taxation,
2. Departments of Labor,
3. Franchise Tax Boards,
4. Secretaries of State (or analogous filing offices),
5. Internal Revenue Service (solely with respect to obtainment of an Employer Identification Number and analogous administrative interactions necessary to complete the Services),
6. Comptrollers of the Currency or State Comptrollers, where applicable to a Service expressly engaged, and
7. And all other state, local, and federal regulators or agencies as necessary to provide the Services.

1. To create and log into accounts with such agencies listed above on your behalf.

1. To receive, open, and respond to any correspondence from such agencies listed above, including both physical and electronic mail, and to initiate correspondence with such agencies as necessary.
2. To take any actions necessary for and on behalf of Company that are necessary or desirable to complete items a through d, which may include signing your name and the name of your entity on any forms, filings, correspondence, declarations, certifications, or other documents submitted to or received from such agencies, including documents necessary to record or effectuate this grant of authority, without the need to indicate that the signature was executed by an agent or through a Power of Attorney.
3. To sub-delegate, in whole or in part, any of the authority granted in items a through e above to any Service Provider engaged by us to perform any portion of the Services. Any such Service Provider, acting within the scope of the sub-delegated authority, is an intended third-party beneficiary of this grant of authority and may exercise the foregoing authority in the same manner and to the same extent as we may.

4.2 Term. This limited power of attorney shall become effective in each state and with respect to each agency when you require the Services in such state or with respect to such agency. This limited power of attorney shall remain in full force and effect until the earliest of: 

1. its revocation in writing by you, which you can do by emailing us at [email protected]; 
2. receipt of the confirmation of a valid and complete filing completion from the applicable agency or regulator, except where you have engaged Middesk to provide ongoing post-formation compliance services, in which case this limited power of attorney shall continue with respect to those ongoing services for the duration of your engagement of such services; or
3. the period set forth on your applicable order form or, if no period is so set forth, eighteen (18) months from the date on which it became effective in the relevant state or with respect to the relevant agency for one-time filings, and the duration of your engagement of the Services for ongoing post-formation compliance services.

4.3 For the sake of clarity. This limited power of attorney gives Middesk the ability to act as you or your company (to “stand in your shoes,” so to speak,) when doing so is necessary or helpful to perform the Services. (E.g., setting up a withholding account in your name, control of which will later be passed to you and your company; filing articles of incorporation on your behalf.) This limited power of attorney does not give Middesk any authority or power outside of what is listed in 4.1 above. Middesk may not use this limited power of attorney for anything other than the provision of the Services on your behalf. This limited power of attorney does not create a fiduciary relationship or any fiduciary obligations for Middesk. This limited power of attorney does not create an attorney-client relationship. The IRS authorization granted in Section 4.1(b) is limited to administrative interactions necessary to obtain and maintain an Employer Identification Number and does not constitute the appointment of Middesk as a “tax matters representative” or analogous fiduciary for federal tax purposes.

4.4 Ratification; Construction. By assenting to this power of attorney, you hereby grant to each such attorney-in fact full power and authority to do and perform any and every act and thing whatsoever required, necessary, or proper to be done in the exercise of any of the rights granted in this Section 4 as fully to all intents and purposes as you might or could do if personally present.  You hereby ratify and confirm all acts we lawfully perform pursuant to this limited power of attorney. If any provision of this Section 4 is held to be invalid or unenforceable under the laws of a particular jurisdiction due to lack of formal requirements for a power of attorney, it shall be construed and given full effect as a written appointment of an agent, delegation of authority, and/or authorization for Middesk to act on your behalf, to the maximum extent permitted under applicable law.

5. Service Fees.

Application of This Section: Direct Billing and Reseller Billing. How you receive and pay for the Services determines which provisions of this Section apply to you:

(a) Direct Billing means that you have engaged us directly to provide the Services and you have a direct payment relationship with us for the Fees attributable to the Services. In Direct Billing, all provisions of this Section apply to you in full.

(b) Reseller Billing means that you receive the Services through a third-party reseller (a “Reseller”), and your payment obligations for the Services are with the Reseller pursuant to your separate agreement with the Reseller. In Reseller Billing, the provisions of this Section apply to you only as follows:

(i) Sections 5.2 (Submission as Billing Trigger; Failed Submissions; Duplicate Submissions), 5.3 (Pass-Through Fees), and 5.9 (Service Provider Charges and Auto-Renewal) apply to you in both Direct Billing and Reseller Billing, because they describe how the Services are performed and how Service Providers may charge you directly, regardless of how the Fees attributable to the Services flow between you, the Reseller, and us. For clarity, where a Service Provider (including the third-party registered agent designated by us) charges your payment method on file directly in connection with the Services, you remain responsible for those charges in accordance with Sections 5.3 and 5.9.

(ii) Sections 5.1 (Fees and Rates), 5.4 (Payment Method; Invoicing), 5.5 (Price Increases), 5.6 (Taxes), 5.7 (Invoice Disputes), and 5.8 (Late Fees and Suspension) do not apply to you in Reseller Billing. Your equivalent obligations with respect to the Services are governed by your separate agreement with the Reseller, and any questions about Fees, payment method, invoicing, price changes, taxes, disputes, or late charges should be directed to the Reseller.

You acknowledge that whether you are in Direct Billing or Reseller Billing should be disclosed to you at signup, in your Middesk account, by the Reseller, or otherwise; if you are uncertain which model applies to you, contact us at [email protected].

5.1 Fees and Rates. We provide the Services to you at the rates shown in your Middesk account unless agreed to otherwise in a separate, fully executed order form (“Order Form”). All fees charged by us, together with any Pass-Through Fees (as defined below), are referred to collectively as “Fees.” Fees for other services (such as for processing a payment) are charged separately. If you have any questions about Fees, you can email us at [email protected].

5.2 Submission as Billing Trigger; Failed Submissions; Duplicate Submissions. You acknowledge and agree that, unless expressly stated otherwise on an Order Form: (a) Fees for a Service accrue and become payable when we submit the corresponding application, filing, registration, or designation to the relevant agency (each, a “Submission”), whether or not the agency subsequently approves, rejects, or requires further information; (b) we may charge full Fees for a Submission that does not result in a successful agency outcome for reasons other than our failure to follow applicable procedures and agency requirements, including where (i) the information you provided is invalid, incorrect, or incomplete, (ii) the agency rejects the Submission through no fault of ours, (iii) the agency identifies the Submission as a duplicate of an existing account or filing, or (iv) agency mail is returned, undeliverable, or lost in transit (each, a “Failed Submission”); and (c) we may charge the applicable Fee for a Submission that constitutes a duplicate of a prior Submission, less any duplicate-submission discount specified on an Order Form. We have no obligation to refund or credit you for Failed Submissions or duplicate Submissions, and you are responsible for any reconciliation with your customers, beneficiaries, or other third parties in connection with Failed Submissions or duplicate Submissions.

5.3 Pass-Through Fees. In addition to our Fees, you are responsible for paying us for all filing fees and costs (including franchise tax payments, expedite fees, and other agency-imposed costs), Registered Agent fees, and any other fees imposed by an agency, third-party service provider, or the Registered Agent in connection with the Services (collectively, “Pass-Through Fees”). Pass-Through Fees are invoiced or charged at cost, without markup, and separately itemized. You acknowledge that certain Pass-Through Fees (including local filing fees) may not be known to us at the time of Submission and may be invoiced or charged after Submission once known. We do not assume any obligation with respect to services provided by Service Providers.

5.4 Payment Method; Invoicing. Unless expressly stated otherwise on an Order Form, you authorize us to charge Fees (including Pass-Through Fees, when known) to the payment method on file in your Middesk account at or after Submission. You agree that we have the right to deduct Fees from amounts processed for you, and, to the extent applicable, you authorize such payment and you agree to be bound by the NACHA rules for any Fees deducted via the ACH system. The authorization granted in this Section will remain in effect until it is cancelled in writing, and the origination of ACH transactions from any account you provide in connection with these Terms must comply with the provisions of U.S. law. Where an Order Form expressly provides, we may invoice you on a periodic basis, in which case the payment terms of the Order Form (and Sections 5.7 and 5.8 below) apply.

5.5 Price Increases. We may revise the Fees for ongoing or recurring Services at the end of your then-current term upon at least thirty (30) days’ prior notice (by email to the address provided to us or by posting in your Middesk account); provided that, the percentage increase to the Fees for a Service in effect at the time of notice shall not exceed the greater of (a) five percent (5%) or (b) the percentage change in the Consumer Price Index – All Urban Consumers (CPI-U) during the preceding twelve (12) months, rounded to the nearest one-tenth of one percent (0.1%). The foregoing ceiling does not apply to: (i) the introduction of new Services or new Service tiers (which require your acceptance through an updated Order Form or, where applicable, through your continued use after notice); (ii) Pass-Through Fees, which reflect third-party charges outside our control; or (iii) Fees expressly set on an Order Form, which are governed by the Order Form. If you do not accept a permitted price increase, your sole remedy is to terminate the affected Service by written notice prior to the effective date of the increase, in which case the increase will not apply to Services performed through the effective date of termination.

5.6 Taxes. You are responsible for all federal, state, local, and foreign sales or use taxes, documentary stamp tax, value-added tax, and any other taxes assessed against you in connection with the Services, except with respect to our income tax, and you will pay or reimburse us for such taxes in accordance with the billing terms set forth above.

5.7 Invoice Disputes. Where we invoice you (rather than charging your payment method on file), our invoices will be deemed correct and acceptable to you unless you deliver a written notice of dispute (email sufficient) within fourteen (14) days after your receipt of the invoice, describing (a) the specific amounts disputed, (b) the basis for the dispute, and (c) supporting documentation. While a dispute is pending, you may in good faith withhold the disputed amount but shall pay all undisputed amounts when otherwise due. A charge for which you do not deliver a timely written statement is deemed undisputed. Once a dispute is resolved, you shall pay any remaining amounts due (if any) within fifteen (15) days of such resolution.

5.8 Late Fees and Suspension. Unpaid undisputed amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by applicable law, whichever is lower, plus reasonable attorneys’ fees and collection costs we incur in collecting unpaid amounts. Your failure to pay undisputed Fees when due is a material breach of these Terms, and we may suspend the affected Services upon written notice and until you cure.

5.9 Service Provider Charges and Auto-Renewal. You acknowledge and agree that certain Services are performed by Service Providers (including, with respect to Registered Agent Services, a third-party registered agent designated by us), and that the Service Provider’s own terms may apply to charges, renewals, and refunds for the Service Provider’s portion of the Services. In particular:

(a) Auto-renewal of Registered Agent Services and similar recurring Services. Where you have subscribed to Registered Agent Services or other recurring Services performed by a Service Provider, the relevant Service Provider may automatically charge an annual or other periodic renewal fee to the payment method on file with us or directly with the Service Provider, in accordance with the Service Provider’s terms. You are responsible for the timely cancellation or non-renewal of any such recurring Service in accordance with the Service Provider’s procedures and our then-current instructions, which we will make available to you on request and through your Middesk account.

(b) No refund of Service Provider charges. Once a Service Provider has charged you or us for any Service or for an auto-renewal of any Service prior to your valid cancellation, we have no obligation to refund, credit, or otherwise reverse such charge, and you remain responsible for the corresponding Fee (subject to your dispute rights under Section 5.7).

(c) Service Provider terms. As described in Section 2.a, you may be required to accept the Service Provider’s own terms of service or related agreement as a condition of receiving the relevant Service. Those terms govern the direct relationship between you and the Service Provider, including refunds, warranties, and limitations of liability with respect to the Service Provider’s portion of the Services.

6. Indemnification

You agree to defend, indemnify, and hold harmless Middesk and the Service Providers, and each of their respective affiliates, employees, and agents (each an “Indemnitee”) from and against any third party claim, suit, demand, loss, liability, damage, action, or proceeding arising out of or relating to: (i) your breach of any provision of these Terms; (ii) any disputes between you and your customers or any other third party; (iii) your negligence, recklessness, or wrongful intentional acts; (iv) your contractual, or other, obligations between you and any third party, including any Service Provider; (v) your use of the Services in a manner that is illegal, violates Applicable Law, or is inconsistent with the Middesk Documentation; or (vi) any inaccuracy, incompleteness, delay in you providing information to Middesk, or unlawfulness of the Company Data or other information you provide to us.

7. Representations and Warranties

You represent and warrant to us that you will: (i) comply with your obligations under these Terms; (ii) comply with Applicable Law; and (iii) not use the Services in a manner that is illegal, or could be considered unfair or deceptive. You may use the Services for the purposes described in these Terms and in a manner consistent with the Middesk Documentation. Except as expressly stated to the contrary, no license, ownership or other interest is transferred under these Terms. Except as expressly provided in these Terms, we provide the Services to you on an “as is” and “as available” basis, without any warranties, express, implied, or statutory.

8. Limitations of Liability

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT WE WILL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES REGARDLESS OF THE LEGAL THEORY, OR WHETHER WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL WE BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR ACCOUNT, OR THE INFORMATION CONTAINED THEREIN.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT OUR TOTAL LIABILITY FOR ALL CLAIMS RELATING TO YOUR USE OF MIDDESK’S SERVICES SHALL IN NO EVENT EXCEED THE AMOUNT WE RECEIVED FOR THE SERVICES ATTRIBUTABLE TO YOU (WHETHER PAID BY YOU DIRECTLY UNDER DIRECT BILLING OR BY A RESELLER ON YOUR BEHALF UNDER RESELLER BILLING) DURING THE TWELVE-MONTH PERIOD PRECEDING THE DATE OF YOUR CLAIM.

9. Other General Legal Terms

a. Term, Termination, and the Effects of Termination: This Agreement begins when you accept these Terms or first use the Services and continues for one (1) year (‘Initial Term’). Thereafter, it automatically renews for successive one-year terms (‘Renewal Terms’) unless either party gives at least 30 days’ written notice before the end of the current term. 

We may terminate these Terms or suspend your access to some or all of the Services immediately (i) if you are in material breach of these Terms or the Privacy Policy and fail to cure such breach within 30 days of written notice (or, in the case of a payment breach, within ten (10) days of written notice), (ii) upon 30 days’ notice for any reason, (iii) if your participation or use of the Services presents, in our reasonable judgement, a heightened risk of legal or regulatory non-compliance or an unacceptable risk of harm to Middesk or a Service Provider, (iv) if you become the subject of any voluntary or involuntary bankruptcy or insolvency petition or proceeding, (v) upon the demand of any Service Provider, (vi) if you fail to provide any information we reasonably request to verify your identity, the nature and ownership of your business, or evaluate the risk of doing business with you, or (vii) if required to do so under court or legal order or as required by Applicable Law. 

You may terminate these Terms upon written notice to us if we materially breach these Terms and fail to cure such breach within thirty (30) days of your written notice describing the breach in reasonable detail. If you terminate these Terms under the preceding sentence: (i) in Direct Billing, you will pay for Services performed through the effective date of termination only, and we will refund to you any pre-paid, unused Fees attributable to the Services not rendered; and (ii) in Reseller Billing, we will refund to the Reseller any pre-paid, unused amounts we received from the Reseller attributable to the Services not rendered for you, and any further refund or remedy available to you is governed by your separate agreement with the Reseller. The refund right in this paragraph is a refund of unearned Fees, is not subject to the limitation of liability in Section 8, and is in addition to any other remedies available to you under these Terms.

Upon termination of this Agreement, you waive and release us from any obligation to forward or re-mail documents that are received after the date of termination and you specifically agree that we have no obligation to take any further action on your behalf in connection with any Services rendered prior to the date of termination. Upon your written request within thirty (30) days after the effective date of termination, we will use commercially reasonable efforts to provide you with copies of filing confirmations and other Middesk-generated artifacts relating to Services we performed for you prior to termination.

You agree to hold us and our affiliates harmless from any third-party claim arising out of a delay or failure of you to receive notice, or respond to or action a notice due to the termination of this Agreement. Please note that termination of these Terms will not affect any continuing compliance obligations to which you may be subject including corporate filing, governance, and taxation obligations. 

b. Dispute Resolution; Agreement to Arbitrate:

1. Binding Arbitration: Any dispute not resolved by the Parties by mutual consultation will be determined by arbitration in San Francisco, California before a single arbitrator. The arbitration will be administered by JAMS. For claims greater than $250,000, the JAMS Comprehensive Arbitration Rules and Procedures in effect at the time the arbitration is commenced will apply. For claims less than or equal to $250,000, the JAMS Streamlined Arbitration Rules in effect at the time the arbitration is commenced will apply. The arbitrator will apply the substantive law of the State of California, exclusive of its conflict or choice of law rules. If JAMS is no longer in business or refuses or declines to administer any dispute between the Parties brought before it, either Party may petition the United States District Court for the Northern District of California to appoint the arbitrator. Either party may seek temporary or preliminary relief in court as needed to protect its rights pending arbitration. The Parties acknowledge that this agreement evidences a transaction involving interstate commerce. Notwithstanding the provisions in this paragraph referencing applicable substantive law, the Federal Arbitration Act (9 U.S.C. §§ 1-16) will govern any arbitration conducted pursuant to the terms of this agreement. Either Party may commence arbitration by providing to JAMS and the other Party to the dispute a written demand for arbitration, setting forth the subject of the dispute and the relief requested. The existence of a dispute and the observance by the Parties of the dispute resolution procedures in this Section will not: (a) excuse any Party from continuing to perform its obligations under this agreement; or (b) suspend any obligation to pay any amount otherwise due and payable under this agreement unless that obligation or the amount (to the extent in dispute) is itself the subject of the dispute. Nothing in this agreement affects the right of a Party to institute proceedings to seek urgent injunctive or declaratory relief in respect of a dispute or any matter arising under this agreement. If any dispute leads to an arbitration or other legal proceeding to resolve such dispute, the prevailing Party in such proceeding will be entitled to receive its reasonable attorneys’ fees, expert witness fees and out-of-pocket costs incurred in connection with such proceeding, in addition to any other relief it may be awarded. To the extent permitted by applicable law, all arbitration proceedings will be subject to the confidentiality terms herein.
2. Service of Process: Each party hereby irrevocably and unconditionally consents to service of process through personal service at their corporate headquarters, registered address, or primary address as noted on your Middesk account. Nothing in these Terms will affect the right of any party to serve process in any other manner permitted by Law.
3. Provision of an Award: Subject to the limitations of liability identified in these Terms, the appointed arbitrators may award monetary damages and any other remedies allowed by the laws of the State of California. In making a determination, the arbitrator will not have the authority to modify any term or provision of these Terms. The arbitrator will deliver a reasoned written decision with respect to the dispute (the “Award”) to each party, who will promptly act in accordance with the Award. Any Award (including interim or final remedies) may be confirmed in or enforced by a state or federal court located in San Francisco, California. The decision of the arbitrator will be final and binding on the parties, and will not be subject to appeal or review.
4. Fees: Each party will advance one-half of the fees and expenses of the arbitrators, the costs of the attendance of the arbitration reporter at the arbitration hearing, and the costs of the arbitration facility. In any arbitration arising out of or related to these Terms, the arbitrators will award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with those aspects of its claims or defenses on which it prevails, and any opposing awards of costs and legal fees awards will be offset.
5. Confidentiality: The parties will maintain the confidential nature of the arbitration proceeding, the hearing and the Award, except (i) as may be necessary to prepare for or conduct the arbitration hearing on the merits, (ii) in connection with a court application as contemplated above for a preliminary remedy, or confirmation of an Award or its enforcement, (iii) our disclosure of the Award in confidential settlement negotiations, or (iv) as otherwise required by Applicable Law. The parties, witnesses, and arbitrator will treat as confidential and will not disclose to any third person (other than witnesses or experts) any documentary or other evidence produced in any arbitration hereunder, except as required by Law or except if such evidence was obtained from the public domain or was otherwise obtained independently from the arbitration.
6. Conflict of Rules: In the case of a conflict between the provisions of this Section 9(b) and the rules governing arbitration identified above, the provisions of this Section 9(b) will prevail. If any provision of these Terms to arbitrate is held invalid or unenforceable, it will be so held to the minimum extent required by Law and all the other provisions will remain valid and enforceable.
7. Class Waiver: To the fullest extent permitted by Law, each of the parties agrees that any dispute arising out of or in connection with these Terms, whether in arbitration or in court, will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim or dispute proceeds in court rather than through arbitration, each party knowingly and irrevocably waives any right to trial by jury in any action, proceeding or counterclaim arising out of or relating to these Terms or any of the transactions contemplated between the parties.

c. Right to Amend: We may amend these Terms by email or by posting updates in your Middesk account. Updated Terms take effect on the “Last Updated” date. Continued use of the Services means you accept the changes. You agree to periodically review the Terms. You agree that any changes to these Terms will be binding on you upon notice or your use of the Services. If you elect to not accept any changes to these Terms, you must immediately cease using the Services and provide notice to us at [email protected]. By continuing to use the Services after the "Last Updated" date, you agree to be bound by the Terms.

d. Assignment: You may not assign this Agreement, any rights or licenses granted in these Terms, or the right to receive any Services to others without our prior written consent. If you wish to make such an assignment, please contact us. If we consent to the assignment, the assignee agrees to assume all of your rights and obligations owed by you related to the assignment, and must agree to comply with the terms of these Terms. We may assign these Terms without your consent, but will provide reasonable notice after doing so.

e. No Third-Party Beneficiaries: These Terms are not intended to and shall not be construed to give any third party any interest or rights (including any third party beneficiary rights) concerning or in connection with any agreement or provision contained herein or contemplated hereby, except that any reseller, distributor, or partner through which you receive the Services is an intended third-party beneficiary of the limitations of liability, warranty disclaimers, and indemnification provisions of these Terms.

f. Notices:  All notices under this Agreement will be in writing sent to the mailing and/or email addresses associated with your Middesk account and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

g. Entire Agreement: These Terms constitute the entire agreement between you and us with respect to the Services. These Terms describe our entire liability to you and set forth your exclusive remedies with respect to the Services. If any part of these Terms is held to be invalid or unenforceable under Applicable Law, then it should be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under Applicable Law, and the remaining provisions will continue in full force and effect.

h. Survival.  Sections 3, 6, 8, and 9, and those provisions that by their nature and context should survive termination, will survive termination.

i. Construction; Waiver: No provision of these Terms will be construed against any party on the basis of that party being the drafter. Unless stated otherwise, the use of the term “including” or “such as” is not to be interpreted as limiting the generality of the text preceding the term. The failure of either party to enforce any provision of these Terms will not constitute a waiver of that party’s rights to subsequently enforce the provision.