Clarus R&D Solutions, LLC (DBA Clarus R+D) TERMS AND CONDITIONS
Thank you for your interest in working with Clarus R+D. Any ORDER FORM and TERMS AND CONDITIONS and applicable ADDENDA (collectively, the “Agreement”) document how we will work together.
Scope
The details of the engagement are outlined on the attached ORDER FORM. The Customer may request that Clarus R+D perform additional services not covered by this engagement. If so, Clarus R+D will communicate with the Customer, regarding the scope of the additional services and the estimated fee. Clarus R+D may issue a separate ORDER FORM for these services. All services performed by Clarus R+D will be subject to these Terms and Conditions and may be subject to additional terms or limitations.
Fees & Payment
Clarus R+D fees and payment terms are outlined on the applicable ORDER FORM. Payments made via credit card are subject to a processing surcharge of 1.95% for Visa, MasterCard, and Discover, or 2.95% for American Express. This fee will be added to the total invoice amount at the time of transaction. Any invoice or scheduled payment over 10 days past due will be subject to interest on a daily basis at a rate of 1.5% per month.
Obligations
It is the Customer’s sole obligation to file all taxes completely and on time. Full fees are charged regardless of inability to claim the credit because of late and/or missed filing. If the terms of this agreement are broken, all fees become immediately due. In the case of a merger, sale of all assets, or change in control of the ownership of the Customer (including a sale or liquidation event), all Clarus R+D fees are due and payable 90 days from the start of this event. Customer agrees to notify Clarus R+D within 10 days of such event.
Representations & Warranties
At all times, Customer represents and warrants that (a) it is eligible under all applicable laws and regulations to claim and receive all tax credits claimed, (b) it has complied in full and will continue to comply in full with each of the obligations and requirements set forth in this Agreement, (c) any and all information submitted to Clarus with respect to any tax credit is upon submission and will remain at all times true, complete, and accurate in all respects, and Customer agrees to promptly update or amend all applicable, relevant, or necessary information and documentation as necessary, and (d) it is in compliance with all applicable laws regarding any claimed federal and state tax credits.
Indemnification
a. Clarus R+D agrees to indemnify, defend, and hold harmless Customer and its officers, employees, directors, affiliates, subsidiaries, and agents against any and all claims, losses, liabilities, obligations, and expenses including, without limitation, court costs and reasonable attorneys’ fees (collectively, “Claims”) incurred by Customer arising out of Clarus R+D’s material breach of its express obligations set forth in an ORDER FORM in each case when due to no fault of Customer or its breach of its obligations therein.
b. Customer agrees to indemnify, defend, and hold harmless Clarus R+D and its officers, employees, directors, affiliates, subsidiaries, and agents against any and all Claims incurred by itarising out of Customer’s breach of its responsibilities and obligations set forth under an ORDER FORM or these Terms and Conditions.
LIMITATIONS OF LIABILITY
NOTWITHSTANDING ANYTHING ELSE HEREIN: (A) IN NO EVENT WILL CLARUS R+D OR THEIR PERSONNEL, AGENTS, OR EMPLOYEES, BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR OTHER SIMILAR DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR ANTICIPATED PROFITS, LOSS OF REVENUE, LOSS OF USE, LOSS OF DATA, OR BUSINESS INTERRUPTION DAMAGES) HOWEVER CAUSED OR UNDER ANY THEORY OF LIABILITY, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. (B) IN NO EVENT SHALL THE TOTAL LIABILITY OF CLARUS R+D OR ITS AFFILIATES FOR ANY AND ALL DAMAGES, LOSSES, LIABILITIES AND CAUSES OF ACTION ARISING FROM THIS AGREEMENT OR ITS SERVICES EXCEED IN THE AGGREGATE THE TOTAL FEES PAID BY CUSTOMER.
Software Use, Customer Confidentiality & Security
Clarus R+D will use its secure and proprietary web-based software application to perform its services. All data gathered is owned by the Customer for the purpose of Clarus R+D delivering the services listed on the ORDER FORM. Customer grants to Clarus R+D a limited, royalty free, non-exclusive, non-sublicensable, non-transferable license to use, copy, store and display such Customer data to provide Customer with the services listed on the ORDER FORM and to administer our software application.
All Customer information communicated through our software application is maintained on servers that employ reasonable physical, administrative, and technical safeguards consistent with industry standards. Clarus R+D agrees to not disclose any of the Customer’s information to any outside party other than affiliates of Clarus R+D, except (a) as expressly permitted or instructed in writing by Customer; or (b) as required to comply with applicable law, regulation, valid court order or other compulsory legal process; provided that in any such case: (1) Customer is promptly notified in writing of any such requirement unless not permitted by such law or court order, (2) Clarus R&D agrees to furnish only that portion of the information which is legally required to be furnished and to use all reasonable efforts to assure that the information is maintained in confidence by the party to whom it is furnished. Under any circumstance where the Customer, or any of the Customer’s employees or associates are given access to our software application, it is agreed they will abide by Clarus R+D data security policies and practices. Customer’s use of any Clarus R+D software, websites, and/or electronic systems shall be subject to Clarus R+D’s Software Terms, except to the extent in direct conflict with an ORDER FORM or the remaining terms herein. In addition, all such software, websites, and systems shall be subject to Clarus R+D’s privacy policies, as applicable. For clarity, and notwithstanding anything in the Software Terms, it is understood and agreed that (a) all Customer tax information is solely owned by Customer in accordance with the confidentiality section in this Agreement, and (b) Clarus R+D will provide tax advice in accordance with this Agreement or an ORDER FORM.
Additional Terms
a. 280C(c)(3) election. Clarus R+D's fee is based on the Customer's original calculated R&D tax credit. If the Customer takes the 280C(c)(3) election, or if changes in law, regulation, or reclassification of Customer’s capitalization, corporate structure or expenses occur, this does not reduce the fee charged by Clarus R+D.
b. Relationship Between the Parties. Each party’s relationship with the other is that of independent businesses. Nothing in this agreement creates a partnership, joint venture, or similar business relationship between Clarus R+D and Customer. No employee will be considered an employee of the other for any purpose.
c. Non-Exclusivity. This agreement is non-exclusive for both Clarus R+D and Customer.
d. Severability. The invalidity or unenforceability of any provision of the agreement shall in no way affect the validity or enforceability of any other provision hereof.
e. Governing Law. These Terms and Conditions, any ORDER FORM, its and their subject matter and all of the parties’ respective rights and obligations hereunder shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to principles regarding conflicts of law.
f. Entire Agreement. This Agreement is the entire agreement between the parties in relation to the subject matter and replaces all previous representations or proposals not contained in this Agreement. No other agreement, statement, promise, or practice between Customer and Clarus R+D relating to the subject matter of the Agreement is binding. Handwritten changes or additions by Customer to the Agreement are void and unenforceable regardless of execution of the Agreement.
g. Modification, Amendment, and Waiver; Benefit. There are no understandings, agreements, or representations, express or implied, with respect to the subject matter hereof not specified herein. This Agreement shall not be deemed or construed to be modified, amended, rescinded, canceled, or waived in whole or in part, except by a writing executed by both parties.
h. Assignment. This Agreement may not be assigned, nor any duties under this agreement delegated, by operation of law or otherwise, without the prior written consent of the other party. Provided, however, that Clarus R+D may assign this Agreement to a wholly-owned affiliate that agrees to be bound by its terms, upon notice to Customer.
i. Assignment. This Agreement may not be assigned, nor any duties under this agreement delegated, by operation of law or otherwise, without the prior written consent of the other party. Provided, however, that Clarus R+D may assign this Agreement to a wholly-owned affiliate that agrees to be bound by its terms, upon notice to Customer.
j. Duplicated Services. Regardless if an R&D study is started, calculated and/or prepared by a different vendor or payroll provider, Clarus R+D has the right to invoice for work completed in accordance with the ORDER FORM.
k. Dispute Resolution. The parties agree to make good faith efforts to negotiate and mediate any claim, dispute, or controversy arising out of this Agreement, which would otherwise require or allow resort to any court or other governmental dispute resolution forum, including any such matters involving Clarus R+D’s officers, employees, representatives, or contractors (a "Dispute"). If the Dispute is not resolved within thirty (30) days, the parties agree that the Dispute will be submitted to binding arbitration. Claims for non-payment of fees and claims for injunctive relief are exceptions, can be brought in a court, and the judge will have the power to award attorneys' fees and costs. Each party agrees to waive any and all right to bring any Dispute on a class, private attorney general, representative, or similar basis. Customer agrees that, notwithstanding anything herein or in any applicable law or statute of limitation, it shall not commence any dispute, arbitration, litigation, or grievance upon the expiration of one (1) year from the date of termination of this Agreement.
l. No Third Party Beneficiaries. This Agreement is solely between the Customer and Clarus R+D, has no third party beneficiaries, and creates and/or provides no rights to any third party.
