Ardius

Terms

Terms of Service Agreement

Last updated October 20, 2021

This Terms of Service Agreement (the “Terms”) is entered into by you, a current or prospective user of Ardius’ website or services (“you”, “your”), and Ardius, LLC and its affiliates (“Ardius,” “us,” “we,” or our”). These Terms, together with any supplemental agreements or terms contained in your Order Form (as defined below) are referred to as the “Agreement.” Collectively, the Agreement contains all the terms and conditions that govern your use of (1) Ardius’ website (https://ardius.com) and any associated domains (the “Ardius Website”); and (2) any of our web-based software services and tax advisory services, including our tax service related to the research credit under Section 41 of the Internal Revenue Code of 1986, that we may offer or make available through the Ardius Website or other communications with you (the “Ardius Services”).

The Agreement applies to you as a person using or accessing the Ardius Website and/or the Ardius Services, whether you’re doing so in your capacity as an authorized representative of your company or another individual, or simply in your individual capacity. If you’re agreeing to these terms on behalf of a business or an individual other than yourself, you represent and warrant that you have the authority to do so and your agreement to these terms will be treated as the agreement of that business or individual. By clicking the applicable button to indicate your acceptance of these Terms, or by signing an Order Form, or by accessing or using the Ardius Website, you agree, effective as of the date of that action, to be bound by the terms of the Agreement.

Please read Section 20 of these Terms carefully, as it contains an arbitration provision and class action waiver which require you to resolve disputes with Ardius through final, binding arbitration on an individual basis. By entering into the Agreement, you acknowledge that you have read and understand these Terms and that you agree to be bound by the arbitration provision and class action waiver in Section 20.

1. Order Forms

Our provision of the Ardius Website or Ardius Services is governed by the Agreement. The Agreement contemplates one or more written order forms, which we will draft and send to you for review and acceptance when you request one or more of our services (the “Order Form” or “Order Forms”). You can accept an Order Form by e-signature as described in Section 11 below. Once you accept the Order Form, that Order Form will be incorporated into this Agreement, including any pricing or other terms on the Order Form. The terms of your Order Form will supersede these Terms if and to the extent there is a conflict between them.

The service fees or charges Ardius lists and agrees to on the Order Form will be made on the basis of information available at the time that the Order Form is signed. If Ardius determines, in our sole discretion, that the scope or complexity of the Ardius Services described on the Order Form have changed over the course of our provision of the Ardius Services, we will give you written notice you acknowledge and agree that such service fees or charges may be modified or updated to reflect the changed scope of work.

2. Additional Terms for Services

Service-specific terms are contained in the Appendices to these Terms. In addition, some of the Ardius Services may be governed by separate terms of service. We will provide you with those terms of service (“Service Terms”) for review and acceptance before you subscribe to or order the relevant service. Any Service Terms you agree to will be incorporated into and form a part of the Agreement. If there is a conflict between any Service Terms, your Order Form, and/or these Terms, then the order of precedence with respect to which terms control will be: the Order Form, followed by the Service Terms, and lastly, followed by these Ardius Terms of Service.

3. Your Responsibilities Relating to the Ardius Services

By accepting this Agreement, you understand and agree to the following:

Instructions: We may provide you with instructions about how to use the Ardius Services or the Ardius Website. You are solely responsible for following those instructions, whether we send them to you by email, by posting on our website, or otherwise.

Information you provide to us: You may share information with us (e.g. contact information, tax or account information) as you use the Ardius Services. You represent that you have the authority to share such information, and you understand that you are solely responsible for the accuracy and completeness of information you share with us. If any of the information you share with Ardius is inaccurate or incomplete, you agree to promptly notify us of any changes or corrections.

Review and approval: You are responsible for reviewing all tax forms, reports, summaries, information, documents or materials (collectively, “Materials”) that we submit to you for review, and you must notify Ardius of any inaccuracies in the Materials as soon as possible, or within a specified time frame if we reference one in our communications with you. You acknowledge that Ardius’s calculations may differ from calculations performed by other tax services or accountants, and you accept full responsibility for the results of the Ardius Services, and for your reliance on any of the Materials.

Third party notices: You must promptly notify us of any third-party notices that you may receive which could affect our ability to effectively provide the Ardius Services, or which could increase the likelihood that a Claim (as defined below) is brought against you or Ardius in connection with the Ardius Services, e.g. notices from the Internal Revenue Service or other government agencies regarding penalties or errors relating to the Ardius Services.

Communications with tax agencies: You are solely responsible for all 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. Unless we specify otherwise in writing, Ardius is not responsible for providing any assistance in preparing for or responding to tax audits or examinations, and Ardius is not in the business of providing professional or legal advice. We encourage you to consult an attorney in the event of an audit or examination.

4. Services Fees and Charges

Your Order Form may include a fee schedule, and you agree to pay the fees for the Ardius Services (“Fees”) in accordance with that fee schedule. Certain service-specific fees are also listed in the Appendices to these Terms. If applicable, you agree to reimburse Ardius for direct expenses incurred in connection with the performance of the Ardius Services, including reasonable out-of-pocket expenses for travel, meals, accommodations and other expenses as specified on your Order Form. Ardius will bill you for our fees and expenses and any applicable taxes and payment is due upon your receipt of our invoice.

We reserve the right to change our Fees from time to time and we will notify you at least 30 days before any change to an existing fee goes into effect.

5. Use of the Ardius Website and Ardius Services

You may only use the Ardius Website and Ardius Services only if (1) you are thirteen years of age or older and (2) you are not barred from using the Ardius Website or Ardius Services under applicable law.

6. Privacy Policy

Please refer to our Privacy Policy for information on how we collect, use, and disclose information about you when you access or use the Ardius Website or Ardius Services. You understand that through your use of the Ardius Website or Ardius Services, you consent to the collection and use of this information as described in the Privacy Policy.

7. User’s Compliance with the Agreement

Use of the Ardius Website and the Ardius Services are each conditioned upon your full compliance with this Agreement and all applicable laws, rules, and regulations.

8. Third-Party Services, Websites, and Resources

The Ardius Website and Ardius Services may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products, or services on or available via those links. You are responsible for, and assume all risk relating to, your use of any third-party websites or resources.

9. Proprietary Rights

“Ardius Content” means text, graphics, images, software, audio, video, works of authorship of any kind, and documents, information, or other materials that we provide through the Ardius Website or Ardius Services. All Ardius Content included in the Ardius Services or on the Ardius Website is the exclusive property of Ardius and our licensors. Ardius and our licensors exclusively own all worldwide right, title, and interest in and to the Ardius Content, and also in and to the Ardius Website and the Ardius Services, including in each case all associated intellectual property rights (“Ardius IP”). You acknowledge that the Ardius Website, Ardius Services, and Ardius Content are protected by intellectual property laws of the United States and foreign countries, and you agree not to remove, change, or obscure any copyright, trademark, or other proprietary rights notices incorporated in or with the Ardius Website, Ardius Services, or Ardius Content.

This Agreement does not convey any proprietary interest in, or rights of entitlement to the use of, any Ardius IP unless expressly stated. However, subject to your compliance with this Agreement, Ardius grants you a limited, non-exclusive, non-transferable, non-sublicensable license to access and download Ardius Content solely in connection with your permitted use of the Ardius Website and Ardius Services for your own behalf.

Ardius may ask you for feedback to help us improve our website or services. Any feedback you choose to provide will be given entirely voluntarily. When you provide feedback, you agree that we will be free to use and disclose that feedback as we see fit without restriction of any kind.

10. Publicity

By accepting these Terms you agree that Ardius may use your company’s name and logo for the limited purpose of identifying you as our customer on the Ardius Website or in other marketing materials. We agree to comply with any trademark or brand usage policies you may provide to us for that purpose.

11. General Prohibitions

By accepting this Agreement, you agree not to take any of the following actions:

  • Use the Ardius Website or Ardius Services other than as authorized in this Agreement;
  • Resell, sublicense, or otherwise share the Ardius Services with any third party;
  •  Display, mirror, or frame (i) the Ardius Website, or any page or excerpt of the Ardius Website or; (ii) Ardius Content or Ardius IP (including hidden text or metadata) without our express prior written consent;
  • Access, tamper with, or use non-public areas of the Ardius Website, Ardius Services, Ardius’ computer systems, or the technical delivery systems of our providers;
  • Interfere or attempt to interfere with the proper working of the Ardius Website or Ardius Services or any activities conducted on the Ardius Website or Ardius Services;
  • Take any action that imposes or may impose (as determined by Ardius in Ardius’ sole discretion) an unreasonable load on Ardius’ infrastructure;
  • “Crawl” or “spider” the Ardius Website; or scrape any content from the Ardius Website;
  • Attempt to probe or test the vulnerability of any Ardius system or network, or breach any security or authentication measures;
  • Avoid, bypass, remove, deactivate, impair, or otherwise circumvent any technological measure implemented by Ardius or any of Ardius’ providers or any other third party (including another user) to protect the Ardius Services or Ardius Content;
  • Access the Ardius Website for the purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purposes;
  • Send unsolicited, deceptive, or unauthorized advertising, promotional materials, junk mail, spam, or other form of solicitation through the Ardius Website or using Ardius Content;
  • Use the Ardius Services or Ardius Content (i) for any purpose other than your internal business purposes, or (ii) for the benefit of any third party;
  • Attempt to reverse engineer any software used to provide the Ardius Services;
  • Interfere, or attempt to interfere, with the access of any user, host, or network to the Ardius Website or Ardius Services;
  • Collect from or store on the Ardius Website any personal data of other users without their express permission;
  • Misrepresent your affiliation with any person or entity; engage in any fraudulent or illegal activities, or use the Ardius Services to support any such activities; or
  • Encourage, assist, or enable anyone else to do any of the foregoing.

12. E-Signatures

Ardius, as well as Ardius’ parent company ZenPayroll Inc., d/b/a Gusto (“Gusto”), provide electronic signature services (the “E-Sign Services”) which allow you to sign documents electronically. Each time that you use the E-Sign Services, you are expressly (i) affirming that you are able to access and view the document (the “Document”) you are electronically signing; (ii) consenting to conduct business electronically for that transaction; and (iii) agreeing to the use of electronic signatures for the Document.

Using the E-Sign Services to electronically sign Documents is optional, and you can choose to manually sign Documents if you prefer. If you would like to manually sign a Document, you should (i) inform the party that sent you the Document of your decision to manually sign that Document; (ii) make sure that you do not electronically sign the Document; and (iii) obtain a physical copy of the Document to sign. Obtaining a physical copy of the Document is your sole responsibility and neither Ardius nor Gusto is responsible for physical copies.

Neither Ardius nor Gusto has any responsibility with respect to the content, validity, or enforceability of any Document, nor are Ardius or Gusto responsible for matters or disputes arising from the Documents.

Ardius and Gusto make no representations or warranties regarding the validity or enforceability of electronic documents or electronic signatures. UNDER APPLICABLE U.S. STATE AND FEDERAL LAWS, ELECTRONIC SIGNATURES ARE NOT ENFORCEABLE ON SOME DOCUMENTS. IT IS USER’S RESPONSIBILITY TO CONSULT WITH AN ATTORNEY TO DETERMINE WHETHER A DOCUMENT WILL BE ENFORCEABLE IF IT IS ELECTRONICALLY SIGNED VIA THE E-SIGN SERVICE.

13. Ardius Makes No Representations Regarding Ardius Website or Ardius Services Availability

Ardius makes no representations or warranties about the Ardius Services’ or Ardius Website's uptime, availability, or permissibility in any geographical location. Scheduled system maintenance or emergency maintenance may occur from time to time, and during such periods, the Ardius Website and Ardius Services may be unavailable without notice.

14. Warranty Disclaimers

Your use of the Ardius Website, Ardius Services, and Ardius Content is entirely at your own risk. Unless we specify otherwise, Ardius is not in the business of providing legal, regulatory, tax, financial, accounting, employment, or other professional services or advice. Any information we provide via the Ardius Services or otherwise is meant for informational purposes only and should not be interpreted as professional advice unless we specify otherwise. You should consult a professional that is trained or licensed in the relevant area if you need assistance.

TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE ARDIUS WEBSITE, ARDIUS SERVICES, AND ARDIUS CONTENT 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 OR ARDIUS CONTENT IN OR LINKED TO THE SERVICES. ARDIUS DOES NOT WARRANT THAT THE ARDIUS SERVICES, SERVICES, OR ARDIUS CONTENT WILL (I) MEET YOUR 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 MAKING SURE THAT DOCUMENTS WHICH ARE ELECTRONICALLY SIGNED VIA THE E-SIGN SERVICE ARE VALID AND ENFORCEABLE UNDER ANY APPLICABLE U.S. LOCAL, STATE, OR FEDERAL LAWS, OR THE LAWS OF ANY OTHER JURISDICTION.

If any error results, whether directly or indirectly, from our reliance on information or modifications to information that you, or anyone that we reasonably believe to be you or someone authorized to act on your behalf or as your representative (each such error, a “Resulting Error”), then we will attempt to correct the Resulting Error, but we make no warranties or guarantees that we will be able to partially or fully correct the Resulting Error.

We do not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through the Ardius Services or any hyperlinked website or service, and we will not be a party to or in any way be responsible for monitoring any transaction between you and third-party providers of products or services.

15. Indemnity

You will indemnify and hold harmless Ardius and its parent(s) and affiliates along with any officers, directors, employees, and agents of the same (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) your access to or use of the Ardius Website, Ardius Services or Ardius Content; (ii) your violation or alleged violation of the Agreement; (iii) your 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) your violation or alleged violation of any applicable law, rule, or regulation; (v) your gross negligence, fraudulent activity, or willful misconduct; (vi) Ardius' or any other Indemnified Party’s use of or reliance on information or data furnished by you, your employee or independent contractor, or your authorized representative in providing the Ardius Services, or otherwise in connection with the Agreement; (vii) actions or activities that Ardius or any other Indemnified Party undertakes in connection with the Ardius Services or this Agreement at the direct request or instruction of anyone that Ardius or any other Indemnified Party reasonably believes to be you or your authorized representative (each such action or activity, a “Requested Action”); (viii) Ardius' or any other Indemnified Party’s use of or reliance on information or data resulting from such Requested Actions; or (ix) your failure, or the failure of your authorized representatives, to properly follow Ardius' instructions with respect to the Ardius Website or Ardius Services.

16. Limitation of Liability

Ardius is not responsible or liable for (i) Resulting Errors or any consequences or Claims directly or indirectly arising from Resulting Errors; (ii) any consequences or Claims directly or indirectly resulting from your delay in providing, or your failure to provide, Ardius with information necessary for its provision of the Ardius Services; (iii) your negligence or any negligence of your authorized representatives; (iv) any Claims, or portions of any Claims, that you could have reasonably avoided or mitigated through reasonable efforts; (v) any Requested Actions, or any consequences or Claims directly or indirectly resulting therefrom; or (vi) your failure, or the failure of any of your authorized representatives, to properly follow Ardius' instructions with respect to the Ardius Services.

NEITHER ARDIUS NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE ARDIUS WEBSITE, ARDIUS SERVICES, OR ARDIUS CONTENT 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 ARDIUS WEBSITE, ARDIUS SERVICES, OR ARDIUS CONTENT, 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 YOU. IN NO EVENT WILL ARDIUS' TOTAL LIABILITY FOR ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE ARDIUS SERVICES, SERVICES, OR CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TO ARDIUS FOR USE OF THE ARDIUS WEBSITE, ARDIUS SERVICES, OR ARDIUS CONTENT 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 YOU AND ARDIUS.

17. Duty to Mitigate

If you become aware of, or reasonably should have been aware of, any facts or information which are reasonably likely, whether alone or in combination with any other facts or information to lead to a Claim against you or Ardius in connection with this Agreement, you must use reasonable efforts to mitigate any loss that may give rise to such a Claim.

18. Term; Termination; Suspension

You may terminate the Ardius Services and this Agreement by providing us at least ninety days written notice. If you do provide notice and terminate this Agreement, Ardius will send you an invoice for all outstanding Fees, including any fees based on the unutilized R&D Tax Credits identified by Ardius through the Ardius Services, upon termination with payment due upon receipt. If we do not receive written notice from you in compliance with this Section, this Agreement will automatically renew unless otherwise specified in your applicable Order Form.

Ardius may terminate the Ardius Services and this Agreement by giving you at least thirty days’ prior written notice. Ardius may also immediately terminate the Ardius Services and this Agreement, with or without notice to User, if: (i) Ardius has any reason to suspect that you may be in violation of this Agreement; (ii) Ardius determines that your actions are likely to cause us legal liability or material negative impact; (iii) Ardius believes that you have misrepresented any information or that you have engaged in fraudulent, deceptive, or illegal activities; (iv) Ardius has determined that you are behind in payment of Fees and you have not cured such non-payment within five days of Ardius providing you with notice of the non-payment; or (v) you file 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 you. While we strive to support most business types, in certain unique situations, if Ardius cannot provide the Ardius Services for your business type, we may immediately terminate the Ardius Services and this Agreement by giving you written notice. The termination of any of the Ardius Services or this Agreement will not affect your or Ardius' 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' termination of this Agreement. Sections 4 (to the extent that there are any unpaid fees for services rendered as of the time of termination of this Agreement), 5, 6, 9, 11, and 13 through 24 of these Terms of Service, and any terms of the Order Form which by their nature should survive, will survive and remain in effect even if this Agreement is terminated, cancelled, or rescinded.

19. Changes to the Terms of Service, Order Form, or Ardius Services

Ardius reserves the right to modify these Terms of Service at any time. If we do so, we will let you know either by posting the modified Terms of Service on the Ardius Website or through other communications. It is important that you review the Terms of Service whenever we modify it because if you continue to use the Ardius Services or Ardius Website after we have notified you of the modification and the modified Terms of Service have been posted on the Ardius Website, you are indicating that you agree to be bound by the modified Terms of Service. If you do not agree to be bound by the modified Terms of Service, then you may not continue to use the Ardius Website or Ardius Services. Because the Ardius Services are evolving over time, Ardius may change or discontinue all or any part of the Ardius Website, Ardius Services, or Ardius Content at any time and without notice, at Ardius' sole discretion. You acknowledge and agree that you may not modify the terms of an applicable Order Form except to the extent such changes are requested in writing within thirty days of the renewal of the applicable term.

20. Governing Law

This Agreement shall be interpreted and construed in accordance with the laws of the State of California, without regard to conflicts of laws principles.

21. Arbitration

Notwithstanding any other provision in this Agreement, and except as otherwise set forth in this section, if either you or Ardius has any dispute, controversy, or claim, whether founded in contract, tort, statutory, or common law, concerning, arising out of, or relating to this Agreement, the Ardius Website, or the Ardius Services, including any claim regarding the applicability, interpretation, scope, or validity of this arbitration clause and/or this Agreement (each of the foregoing, a “Legal Claim”) that cannot be resolved directly between you and Ardius, then such Legal Claim will be settled by individual (not class or class-wide), confidential, binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with the then-current Commercial Arbitration Rules and Mediation Procedures of the AAA (the “AAA Rules”), including any expedited procedures. To initiate an arbitration proceeding, an arbitration claim must be submitted by the claimant (the “Claimant”) to the AAA, and a written Demand for Arbitration must be provided to the other party (the “Opposing Party”), pursuant to the AAA Rules. Arbitration hearings will be held in San Francisco, California or any other location that is mutually agreed upon by you and Ardius. A single arbitrator will be mutually selected by you and Ardius 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 AAA’s roster of commercial dispute arbitrators who have a background in tax, accounting, payroll, and/or online commerce law (or if there are no such arbitrators, then from the arbitrators on the AAA’s roster of commercial dispute arbitrators) (collectively, the “Arbitrator Requirements”). If you and Ardius 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 the AAA shall appoint a single arbitrator that satisfies the Arbitrator Requirements. The arbitrator will follow the law and will give effect to any applicable statutes of limitation. The prevailing party shall be entitled to an award of the costs and expenses of the arbitration, including reasonable attorneys’ fees and expert witness fees. The award rendered by the arbitrator shall be final and binding upon you and Ardius. A judgment on the award may be entered and enforced in any court of competent jurisdiction. Ardius may, in its sole discretion, commence an action in any state or federal court of competent jurisdiction within the County of San Francisco, California, for any monetary amounts that you owe to Ardius (each, an “Action”). By accepting this Agreement, you understand and agree that you waive any objection to jurisdiction or venue, or any defense claiming lack of jurisdiction or improper venue, in any Action brought by Ardius in such courts.

You and Ardius agree and acknowledge that this Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act (Title 9 of the United States Code) shall govern the interpretation, enforcement, and proceedings pursuant to the arbitration clause in this Agreement. YOU FURTHER ACKNOWLEDGE, UNDERSTAND, AND AGREE THAT YOU AND ARDIUS ARE EACH WAIVING THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY AS TO DISPUTES HEREUNDER AND THAT YOU ARE WAIVING YOUR RIGHT TO PARTICIPATE IN ANY CLASS ACTION PROCEEDING ARISING FROM THIS AGREEMENT.

22. Ardius Is Not Responsible for Things Ardius Cannot Control

Ardius is not responsible or liable for any delays, adverse effects, or failures in performance from any cause beyond Ardius' control, including, but not limited to, acts of God, changes to laws, embargoes, wars, terrorist acts, acts or omissions of third-party technology providers (including, e.g., third party web hosting service providers upon whose services the Ardius Website and Ardius Services rely), riots, fires, earthquakes, floods, power outages, strikes, weather conditions, acts of hackers, acts of any other third party, or your acts or omissions.

23. General

This Agreement, including all applicable Order Form terms and Service Terms, constitutes the entire agreement between you and Ardius regarding the Ardius Website, Ardius Services, and Ardius Content and replaces all prior understandings, communications, and agreements regarding this subject matter. This Agreement may be modified only by a written amendment signed by the parties or as otherwise provided in Section 18. 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. You may not assign this Agreement without Ardius' prior written consent. 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 Ardius Website. 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 Ardius Website, the date of such posting will be deemed the date that notice is given. Ardius' 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.

24. Electronic Transmission

This Agreement, and any amendments hereto, by whatever means accepted, shall 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 you nor Ardius 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 this Agreement or (ii) the fact that any signature or acceptance of this Agreement was transmitted or communicated through electronic means; and each party forever waives any related defense.

25. Contact Information

If you have any questions about this Agreement or the Ardius Services, please contact Ardius at legal@ardius.com. Ardius is located at 407 W. Imperial Highway, Ste. H345, Brea, California 92821. If you are a California resident, you may report complaints about the Ardius Services by contacting the Complaint Assistance Unit 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

Appendix 1. Ardius R&D Tax Credit Analysis Service

If (i) your business is determined to qualify for federal R&D Credits (a Qualified Business, as defined below) under the IRS eligibility criteria and (ii) Ardius specifies your business’ eligibility and agrees to provide certain services as described below on your Order Form, Ardius will use commercially reasonable efforts to provide certain tax advisory services related to the research credit (“R&D Credit”) under Section 41 of the Internal Revenue Code of 1986 (as amended) (the “Ardius R&D Tax Credit Analysis Service”).

Ardius R&D Tax Credit Analysis Service Ardius’ provision of the Ardius R&D Tax Credit Analysis Service is governed by this Agreement, including the terms agreed to on your Order Form. The Ardius R&D Tax Credit Analysis Service is only available to businesses that meet the eligibility requirements for the federal R&D Tax Credit as published by the IRS and available on their website (“Qualified Business”). Ardius’ provision of the Ardius R&D Tax Credit Analysis Service to Qualified Businesses may include, but shall not exceed, the below:

  1. Ardius will calculate the regular R&D Tax Credit(s) for your federal and/or state taxes for the specified fiscal year(s) on your Order Form.  
  2. Ardius will prepare Federal Tax Form 6765 as well as the applicable state tax form(s) for the specified fiscal year(s) on your Order Form (collectively, the federal and state tax forms prepared by Ardius are the “Tax Forms”);
  3. Ardius will use documents you provide, including contracts, Forms W-2, supplier invoices, or other business records (collectively “User Documentation”) to determine whether any of your business activities may constitute qualified research for purposes of claiming the R&D Tax Credit(s);
  4. Ardius will interview your employees and/or other business personnel (“Personnel Interviews”) (collectively, User Documentation and Personnel Interviews are “User R&D Information”) to determine whether any of your business activities may constitute qualified research for purposes of claiming the R&D Tax Credit(s); and
  5. Ardius will draft a report or other summary document (“Report”) containing a summary of qualified research expenses, documentation used to support Ardius’ findings, and/or a description of Ardius’ methodology.

Your Responsibilities Related to the Ardius R&D Tax Credit Analysis Service

You are responsible for assembling, preparing, and providing all User R&D Information to Ardius.  This means you are solely responsible for scheduling Personnel Interviews and for ensuring (to the extent reasonably feasible) the attendance of the relevant employee(s). If any User R&D Information is not available, cannot reasonably be made available, or is not provided to Ardius due to circumstances beyond Ardius’ control, We may be unable to complete the Ardius Services and will promptly inform you if that is the case.  Ardius is not responsible for any losses that you may incur due to delays or interruptions caused by failure to provide User R&D Documentation.


If you provide information to Ardius regarding your fixed-base percentage, you represent that your fixed-base percentage has been examined by the IRS for prior tax years, and that no acquisitions or dispositions within the meaning of section 41(f)(3) of the Internal Revenue Code have occurred that require the fixed base percentage to be adjusted.  You understand and agree that Ardius may rely on the fixed-base percentage you provide and that you are solely responsible for ensuring that it reflects the consistency requirement in section 41(c)(6) of the Internal Revenue Code. 


Please review Section 3 of the Ardius Terms of Service as that section contains important information about your responsibility to (1) ensure the accuracy and completeness of any information you provide to us, including any User R&D Information, (2) review Tax Forms and other Materials (including the Report), and (3) retain sole responsibility for submitting information to any tax agency or authority.

Fees for the Ardius R&D Tax Credit Analysis Service

In the event of a change of ownership, asset sale, acquisition or merger of your business (“Sale”), you shall (i) promptly notify Ardius of the Sale and (ii) pay all Fees on any unutilized R&D Tax Credits identified by Ardius through the Ardius Services upon closing of the Sale.


In the event of the termination of this agreement, Customer agrees to pay any and all outstanding fees, including fees based on the unutilized R&D Tax Credits identified by Ardius through the Ardius Services upon termination.