Ardius

Terms of Service

Terms of Service Agreement

Last updated February 13, 2024

This Terms of Service Agreement (the “Terms”) is made and entered into by and between you, Customer (as defined below), and Ardius, LLC and its subsidiaries and affiliates (collectively “Ardius”). These Terms, together with any supplemental agreements or terms contained in Customer’s Order Form are collectively referred to as the “Agreement.” The Agreement governs use of the Ardius website (https://ardius.com), any associated domains, and the Ardius Customer Portal (http://credits.gusto.com) (collectively, the “Platform”), and sets forth the terms and conditions under which Ardius agrees to provide Customer with the R&D Tax Credit Services.

These Terms are applicable to all persons who use or access the Platform and/or the R&D Tax Credit Services (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 Services (collectively “Customer”). Customer’s use of the Platform and the R&D Tax Credit Services 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 an Order Form, 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 ARDIUS TO RESOLVE DISPUTES THROUGH FINAL, BINDING ARBITRATION. CUSTOMER UNDERSTANDS THAT: (1) CUSTOMER WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST ARDIUS 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.

1. R&D Tax Credit Services

Upon Customer’s request for any of the R&D Tax Credit Services (as defined below), Ardius will draft and send to Customer one or more forms that define certain terms including, but not limited to, pricing and scope of work (such forms collectively defined as the “Order Form(s)”). Once Customer accepts an Order Form, the terms of that Order Form will be incorporated into this Agreement. The terms of the Order Form will supersede these Terms if and to the extent there is a conflict between them.

Provided that Customer (a) meets Customer’s payment obligations; (b) complies with the terms of this Agreement; and (c) meets the Eligibility Criteria (as defined below), Ardius will use commercially reasonable efforts to provide the services contemplated in the Order Form.

Such services may include any of 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); (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”); (e) authoring additional qualitative documentation, including project activity summary reports, to support the R&D Tax Credit calculation (“Enhanced Documentation”); and/or (f) up to ten (10) hours of assistance in gathering the data necessary to respond to inquiries from the Internal Revenue Service (“IRS”) about the tax credits (“Audit Assistance”) (individually and collectively, the “R&D Tax Credit Services”). Unless otherwise specified in writing, Ardius 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. Ardius is not in the business of providing professional or legal advice. We encourage Customer to consult a tax advisor prior to using the R&D Tax Credit Services 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.

2. Eligibility Requirements

Customer acknowledges that only businesses that qualify for R&D Tax Credits are eligible for the R&D Tax Credit Services. 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. Ardius will undertake an independent assessment of whether a Customer’s business or business the Customer represents (collectively the “Company”) is eligible for R&D Tax Credits. In the event that Ardius determines a Company is not eligible for the R&D Tax Credits, Ardius shall promptly inform Customer of the same and this Agreement and the R&D Tax Credit Services 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 Services Fees described in Section 6 herein.

3. Customer Responsibilities and Representations Related to the R&D Tax Credit Services

By accepting these Terms, Customer acknowledges and agrees to the following:

(a) Instructions: Ardius may provide Customer with instructions about how to use the R&D Tax Credit Services. 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 Ardius with the necessary Customer Documentation for Ardius to perform the R&D Tax Credit Services, 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 departmental contract and supply 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 Ardius. Customer represents that Customer has the authority to share Provided Information with Ardius, 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 Services, Customer represents and warrants that the Company has authorized Customer to share such Provided Information with Ardius 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 Ardius may submit to Customer for review, and Customer must notify Ardius of any inaccuracies in the Materials as soon as possible, or within a timeframe specified by Ardius. If Customer is a Company Accountant, then Customer represents and warrants to Ardius 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 Services, 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 Ardius of any third-party notices that Customer may receive which could affect Ardius’s ability to effectively provide the R&D Tax Credit Services, or which could increase the likelihood that a Claim (as defined below) is brought against Customer or Ardius or its affiliates in connection with the R&D Tax Credit Services, e.g. notices from the IRS or other government agencies regarding penalties or errors relating to the R&D Tax Credit Services.

(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 Ardius 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. Unless otherwise specified by Ardius in writing, Ardius is not responsible for providing any assistance in preparing for or responding to tax audits or examinations, and Customer acknowledges that Ardius is not in the business of providing professional or legal advice. Ardius encourages Customer to consult a tax advisor in the event of an audit or examination.

4. Audit Assistance Does Not Constitute Professional or Legal Advice

If Customer enrolls in Audit Assistance, as defined herein, and in the event that such Customer receives an IRS or state tax audit letter and/or notice regarding or relating to the Customer Tax Forms prepared by Ardius as described below, Ardius may undertake commercially reasonable efforts to provide Customer with up to ten (10) hours of informational guidance regarding what to expect and how to prepare for an audit. Audit Assistance is intended to educate the Customer as to requirements for activities and expenses to qualify for R&D Tax Credits and effective approaches to addressing the R&D Tax Credit portion of the audit. Audit Assistance will not address any other sections of the tax return or inquiries that do not directly pertain to the R&D Tax Credit, as determined by Ardius in its sole discretion. Audit Assistance does not constitute legal, tax, regulatory or other professional advice and is for informational purposes only. Ardius will not act as Customer’s representative in an audit. Customer is encouraged to consult a tax advisor for guidance in the event of an audit or examination.

Audit Assistance is only available for federal and state tax audit notices and/or letters. To redeem Audit Assistance, Customer must provide Ardius with copies of all relevant notices and/or letters in addition to copies of the relevant Customer Tax Forms and any relevant Customer Documentation as may be specified or requested by Ardius in its sole discretion. Audit Assistance will only be available to Customers for twelve months following such Customer’s date of enrollment in Audit Assistance, which for purposes of this Agreement is deemed the day Customer submits approval of Ardius’s R&D tax credit calculations. Audit Assistance will not be available to Customers who have, as determined by Ardius in its sole discretion, materially altered or modified the information or content on the Customer Tax Forms as originally drafted by Ardius.

5. R&D Tax Credit Services Fees

Ardius will invoice and Customer agrees to pay the fees associated with the R&D Tax Credit Services to which Customer has agreed on the Order Form. 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 Ardius and available to Customer (“Service Fee”); (c) and/or an annual fee (“Annual Fee”) (collectively, the “R&D Tax Credit Services Fees”).

From time to time Ardius may offer discounts on the R&D Tax Credit Services Fees at its sole discretion. In such cases the discounts shall be confirmed with the Customer in writing on the applicable invoice. In addition, Ardius may update the R&D Tax Credit Services Fees at any time.

6. Payment of R&D Tax Credit Services Fees

Ardius shall invoice Customer for the R&D Tax Credit Services according to the following invoice schedule:
  • Report Service: (1) The Report Service Eligibility Fee will be invoiced concurrently with the Report Service Fee. (2) The Report Service Fee will be invoiced once the Customer submits approval of Ardius’s R&D tax credit calculations from the Platform.
  • Enhanced Document: The Enhanced Document Service Fee will be invoiced once the Enhanced Document deliverables (such deliverables to be defined in the applicable sales agreement between Ardius and Customer) are available for Customer download in the Platform. The Enhanced Document is deemed accepted fifteen (15) days after it is made available on the Platform. Notification in the Platform is sufficient for notification purposes, and Ardius may provide additional notification via electronic mail.
  • Audit Assistance: The Audit Assistance Annual Fee will be invoiced concurrently with the Report Service Fee. Customer agrees to pay the fees for the Services as outlined in Sections 5 and 6 and in accordance with the applicable fee schedules listed on the applicable Order Form. Customer authorizes Ardius to debit Customer’s designated bank account, as specified by Customer through the Platform (the “Bank Account”), for all fees as they become payable.All R&D Tax Credit Services Fees are non-refundable unless otherwise specified on the invoice. Customer understands that failure to pay R&D Tax Credit Services Fees as they become payable may result in suspension or termination of this Agreement.
Customer acknowledges that the origination of Automated Clearing House (“ACH”) transactions to the Payroll Account (as defined below) and the transmission of funds via ACH transactions to the payee’s account must comply with applicable laws, rules, and regulations, including the NACHA Rules and Article 4A of the Uniform Commercial Code, as adopted in California and as may be amended from time to time (as amended, the “UCC”). User, authorizes Ardius its parent, subsidiaries and affiliates (collectively, “Gusto”), and the duly authorized personnel and agents of Gusto, to debit Customer’s Bank Account for all fees as they become payable. This authorization will remain in effect until and unless Customer gives Ardius written notice to terminate it. Such written notice of termination must afford Gusto reasonable opportunity to act upon such notice. Notwithstanding the foregoing, Customer shall pay all invoices within fifteen (15) days of receipt thereof via money transfer, ACH, check, or any other payment method Ardius may deem acceptable in its sole discretion. Customer acknowledges that Ardius may use a third-party payment processor, such as Stripe and agrees that such third-party processor complete payments on Ardius’s behalf. Ardius reserves the right to assess interest charges to any past due amounts at the lower of (a) two percent (2%) per month; or (b) the maximum amount allowed by law. All R&D Tax Credit Services Fees are non-refundable unless otherwise specified on the invoice. Customer understands that failure to pay R&D Tax Credit Services Fees as they become payable may result in suspension or termination of this Agreement.

Customer agrees to reimburse Ardius for any sales, use, and similar taxes arising from the provision of the R&D Tax Credit Services 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 Ardius provide the R&D Tax Credit Services is acquired or undergoes a change in ownership, Customer shall be responsible for payment of the total of the remaining R&D Tax Credit Services Fees, including any fees based on the unutilized R&D Tax Credits, incorporating any relevant discounts, and Ardius will invoice Customer for the same in accordance with the terms of this Section 6.

7. Customer Accounts

To access or use the R&D Tax Credit Services, Customer must have an account with Ardius (an “Ardius Account”). Customer hereby authorizes Ardius to obtain and store Customer’s Ardius Account information as necessary to make the R&D Tax Credit Services available to Customer.

8. Privacy Policy

For information on how Ardius collects, uses, and discloses information from Customer, please refer to Ardius’s Privacy Policy (“Privacy Policy”, incorporated herein by reference to https://ardius.com/about/privacy). Customer acknowledges and understands that Ardius may collect, use, and disclose Customer’s information pursuant to the Privacy Policy as it may be updated from time to time.

9. Ardius has No Liability for Provided Information

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 Ardius will rely on the Provided Information furnished by Customer in performing the R&D Tax Credit Services. Ardius 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 Services. 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.

10. Obligation to Notify Ardius of Changes to Provided Information

Customer must promptly notify Ardius of any changes to the Provided Information. In particular, Customer must promptly notify Ardius 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. Ardius is not responsible or liable for any consequences or Claims (as defined below) arising from Customer’s failure to notify Ardius of any changes to the Provided Information.

11. Proprietary Rights

Customer retains all intellectual property rights in and to Customer’s information or data, including Provided Information. Customer grants Ardius a limited license to use Customer’s information and/or data, including Provided Information, to provide and improve Ardius Content (as defined below), the Platform, or the R&D Tax Credit Services. “Ardius Content” includes text, graphics, images, software, audio, video, works of authorship of any kind, or other materials that Ardius provides through the Platform or the R&D Tax Credit Services. Ardius retains all intellectual property rights in and to Ardius Content, the Platform, and the R&D Tax Credit Services. Customer agrees that any feedback or suggestions provided by Customer to Ardius about Ardius Content, the Platform, or the R&D Tax Credit Services (“Feedback”) is given entirely voluntarily, and Ardius will be free to use, disclose, reproduce, license, or otherwise distribute and exploit such Feedback as it sees fit, entirely without obligation or restriction of any kind and without compensating or crediting Customer. Feedback includes, without limitation, feedback Customer provides to Ardius in response to surveys Ardius conducts, through any available technology, about Customer’s experience. Ardius retains all intellectual property rights in the Platform.

12. Warranty Disclaimers

Customer’s use of the Platform and R&D Tax Credit Services is entirely at Customer’s own risk. Ardius is not in the business of providing legal, regulatory, financial, accounting, employment, tax or other professional services or advice. Any information provided by Ardius via the Platform or the R&D Tax Credit Services 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 ARDIUS. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ARDIUS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DATA LOSS, AND NON-INFRINGEMENT. FURTHERMORE, ARDIUS MAKES NO WARRANTIES REGARDING THE ACCURACY, RELIABILITY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR QUALITY OF ANY INFORMATION IN OR LINKED TO THE SERVICES. ARDIUS CANNOT GUARANTEE THE ACCURACY OR COMPLETENESS OF CUSTOMER INFORMATION AND ARDIUS MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO CUSTOMER INFORMATION. ARDIUS 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, ARDIUS 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.

13. Indemnity

Customer will indemnify and hold harmless Ardius, Ardius’s officers, directors, employees, and agents, Ardius’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 Services; (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) Ardius’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 Ardius or any other Indemnified Party undertakes in connection with the R&D Tax Credit Services or this Agreement at the direct request or instruction of anyone that Ardius or any other Indemnified Party reasonably believes to be Customer (each such action or activity, a “Requested Action”); (viii) Ardius’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 Ardius’s instructions with respect to the R&D Tax Credit Services.

14. Limitation of Liability

NEITHER ARDIUS, 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 ARDIUS 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 ARDIUS’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 ARDIUS 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 ARDIUS AND CUSTOMER.

15. Term and Termination

The R&D Tax Credit Services and the Agreement will continue until terminated by either party. Customer may terminate the R&D Tax Credit Services and the Agreement by giving Ardius at least ninety (90) days prior written notice, and shall complete the payment of remaining R&D Tax Credit Services Fees as set forth in Sections 5 and 6 herein. Ardius may terminate the R&D Tax Credit Services and the Agreement by giving Customer at least thirty (30) days’ prior written notice. In addition, Ardius may immediately suspend or restrict Customer’s Ardius Account; suspend or restrict Customer’s access to the R&D Tax Credit Services or immediately terminate the R&D Tax Credit Services and this Agreement, in each case with or without notice to Customer, in the event that: (i) Ardius has any reason to suspect or believe that Customer may be in violation of the Agreement; (ii) Ardius determines that Customer’s actions are likely to cause legal liability for or material negative impact to Ardius; (iii) Ardius believes that Customer has misrepresented any data or information or that Customer has engaged in fraudulent or deceptive practices or illegal activities; (iv) Ardius has determined that Customer is behind in payment of fees for the R&D Tax Credit Services and Customer has not cured such non-payment within five (5) days of Ardius 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 Ardius strives to support a multitude of business and organization types, in certain unique situations, if Ardius cannot support the R&D Tax Credit Services for Customer’s business or organization type, or if the Eligibility Criteria are not met, Ardius may immediately terminate the R&D Tax Credit Services 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, Ardius will invoice Customer for the total of the remaining R&D Tax Credit Services 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 Services or the Agreement will not affect Customer’s or Ardius’s rights with respect to transactions which occurred before termination. Ardius will have no liability for any costs, losses, damages, penalties, fines, expenses, or liabilities arising out of or related to Ardius’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 Services and/or termination of the Agreement, Customer’s right to access and use such terminated R&D Tax Credit Services will automatically terminate.

16. Changes to the Agreement or R&D Tax Credit Services

Ardius 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 Services only if Customer accepts the modified Agreement, indicating to Ardius 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 Services. Because the R&D Tax Credit Services may evolve over time, Ardius may change or discontinue all or any part of the R&D Tax Credit Services at any time and without notice, at Ardius’s sole discretion.

17. Arbitration

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 Ardius may initiate a formal action as described in this Section 17.

Election to Arbitrate. You and Ardius 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 Ardius 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 Ardius 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 Ardius agree that the arbitration of any Dispute shall only proceed on an individual basis. Neither you nor Ardius 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 Ardius 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 ARDIUS 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 Ardius 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 Ardius 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 Ardius 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 Ardius 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.

18. Ardius is Not Responsible for Things Ardius Cannot Control

Ardius is not responsible or liable for any delays or failures in performance from any cause beyond Ardius’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.

19. Electronic Transmission

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.

20. General

This Agreement constitutes the entire agreement between Ardius and Customer regarding the Platform, the R&D Tax Credit Services, and Ardius 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 Ardius’s prior written consent. Any attempt by Customer to assign or transfer this Agreement, without such consent, will be null. Ardius 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 Ardius 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. Ardius’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 Ardius. 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.

21. Contact Information

If Customer has any questions about this Agreement or the R&D Tax Credit Services, Customer may contact Ardius at [email protected]. Ardius 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 Services by contacting the Complaint Assistance Unit of the Division of Consumer R&D Tax Credit Services 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