1. General. These terms and conditions will apply to all services LS performs at Client’s request and pursuant to the Client’s directions (the “Services”).
2. Termination. Each party shall have the right to terminate this Services Agreement at any time by giving written notice to the other party not less than 30 business days before the proposed effective date of termination.
In addition, LS may terminate this Services Agreement and outstanding Services immediately if LS reasonably determines that it must do so to comply with applicable professional standards, applicable laws, or regulations (e.g., a conflict of interest arises).
The provisions of this Agreement by their very nature, are intended to survive termination shall survive after the termination this agreement, including, but not limited to, the parties’ obligations related to any of the following provisions: indemnification, limitations on liability, confidentiality, dispute resolution, payment and reimbursement obligations, limitations on use or reliance, and non-solicitation.
If this Agreement and/or any other Services not covered by this agreement are terminated, Client agrees to compensate LS for the Services performed and expenses incurred through the effective date of termination. To the extent Client terminates any work that includes any licensing arrangements under which Client receives from LS a license to use, or obtain access to, External Computing Options (as defined below),
Client agrees that it will be responsible for all fees and expenses associated with such licenses for External Computing Options through and including the date that is the next calendar month after date the Client provides such termination notice to LS.
3. Indemnification and Limitation of Liability. As the Services are intended for Client and not third parties, Client agrees to release, indemnify and hold harmless LS and its partners, principals, employees, affiliates, contractors and agents (collectively “LS Group”) from and against all claims, liabilities, damages or expenses (including attorneys’ fees) of any kind relating to the Services or this Agreement, whether arising in contract, statute, tort (including without limitation, negligence) or otherwise (collectively, the “Claims”) that are brought by a third party. Client further agrees to release, indemnify, and hold harmless LS Group from all Claims relating to the Services or this Agreement attributable to any misrepresentations made by Client. Except to the extent finally determined to have resulted from LS Group’s fraud or intentional misconduct, LS Group’s aggregate liability to Client for all direct or third-party Claims shall not exceed the amount of fees paid by Client to LS during the 12 months preceding the date of the Claim pursuant to the applicable. In no event shall LS Group be liable for consequential, special, indirect, incidental, punitive, or exemplary losses or damages, loss of profits or losses resulting from loss of data, business or goodwill relating to the Agreement, regardless of whether LS has been advised of the possibility of such damages. Client shall bring any Claims related to the Services or otherwise related to this Agreement no later than one year after (i) the completion of the Services performed which the Claims arose or (ii) this Agreement was terminated prior to completion of the Services, the date this Agreement was terminated. In no event shall the preceding sentence extend any otherwise legally applicable period of limitations on such Claims.
4. Third Parties and Use. All Services and deliverables hereunder shall be solely for Client’s use and benefit pursuant to our client relationship. This engagement does not create privity between LS and any person or party other than Client and is not intended for the express or implied benefit of any third party. No third party is entitled to rely, in any manner or for any purpose, on the Services or deliverables of LS hereunder.
5. LS Responsibilities. LS’s Services will not constitute an audit, review, compilation, examination, or other form of attest engagement. LS shall have no responsibility to address any legal matters or questions of law. After completion of the Services, LS will have no responsibility to update its advice, recommendations or work product for changes or modifications to the law and regulations or for subsequent events or transactions, unless Client separately engages LS in writing to do so.
6. Client Responsibilities. For LS to remain independent, professional standards require LS to maintain certain respective roles and relationships with Client regarding the Services. Client understands and agrees that LS will not perform management functions or make management decisions on behalf of Client. However, LS will provide advice and recommendations to assist management of Client in performing its functions and fulfilling its responsibilities. In connection with LS’s provision of Services, Client agrees that Client shall perform the following functions: (a) make all management decisions and perform all management functions with respect to the Services performed by LS; (b) assign an individual who possesses suitable skill, knowledge, and experience to oversee such Services and to evaluate the adequacy and results of such Services; and (c) accept responsibility for the results of such Services.
Because professional and certain regulatory standards require us to be independent, in both fact and appearance, with respect to the Client in the performance of our Services, any discussions that you have with personnel of LS regarding employment could pose a threat to our independence. Therefore, LS requests that you inform us prior to any such discussions so that we can implement appropriate safeguards to maintain our independence.
7. Client Materials. LS shall be entitled to rely on and assume, without independent verification, that all representations, assumptions, information, and data supplied by or on behalf of Client, its personnel, representatives, and agents (the “Client Materials”) are complete and accurate. Client is responsible for ensuring that all Client Materials provided to LS may be transferred to LS and processed in accordance with the terms of this Agreement and applicable laws, and that to the extent required thereunder Client has obtained all consents required for LS’s receipt and use of the Client Materials. Client agrees that it will not transmit or make accessible to LS in any manner personally identifiable information unless reasonably required for LS’s performance of the Services. LS will not audit or otherwise verify the accuracy or completeness of the data you submit, although we may need to ask you for clarification of some of the information. Client shall be responsible for maintenance and retention of its records. Unless otherwise agreed to by the parties, LS shall not assume any responsibility for any financial reporting with respect to the Services.
8. Ownership of Working Papers. In connection with the performance of the Services, we will prepare records and deliverables as set forth in the scope of work. We also will prepare documents that support our work and include items such as work programs and analyses that do not constitute part of Client’s records (“Working Papers”). The Working Papers prepared pursuant to this Agreement are the property of LS. The Working Papers constitute confidential, proprietary, and trade secret information, and will be retained by LS in accordance with our policies and procedures and all applicable laws.
9. Consent for Disclosure. If LS is engaged in the preparation of tax returns, Internal Revenue Code Sections 6713 and 7216 require LS to obtain your consent before using or disclosing information that you furnish to us in connection with the preparation of your return(s).
You hereby consent to LS’s use of Client’s information for the purpose of providing you with materials and information, including newsletters or other business-related items of interest, news about LS, and invitations to LS-sponsored events.
You also consent to LS’s disclosure of Client’s information to entities owned in whole or in part by LS (“Affiliates”), members of the BDO Alliance USA (a nationwide association of independently-owned local and regional accounting, consulting and service firms, (“Alliance Firms”), and independent contractors, including but not limited to parties who render auxiliary services (“Contractors” and, together with Affiliates, Alliance Firms, “Third-Party Service Providers”) for the purpose of assisting LS in preparing Client’s tax returns and/or rendering other services requested by Client. You consent to disclosure of Client’s information to Third-Party Service Providers outside the United States and consent to the participation of Third-Party Service Providers in making substantive determinations affecting the tax liability reported by Client. This consent applies to all information required to be included in tax returns prepared pursuant to this Agreement and all tax return information relevant to the services provided pursuant to this Agreement unless you request a more limited disclosure in writing sent to email@example.com. Unless limited or revoked in writing, the duration of this consent is the same as the term of this Agreement. LS will not condition its services on your consent except where LS seeks to disclose Client’s tax return information to a Third-Party Service Provider for purposes of performing services related to preparation of Client’s tax return.
10. Fees and Expenses. The fees and expenses under this Agreement shall be set forth in the scope of work. LS may charge additional fees if Client requests that LS perform services in addition to the Services described in any scope of services.
The amount of our fees is based upon the expectation that certain information and assistance will be received by LS in a timely manner from Client as set forth in this Agreement. If LS believes an additional fee is required as the result of the failure of Client to meet any of these requests for information or for any other reason, LS will inform you in a timely manner.
Unless otherwise agreed to, our standard practice is to render our invoices on a monthly basis. Payment of our invoices is due upon receipt. Invoices that are unpaid 30 days past the invoice date are deemed delinquent and we reserve the right to charge interest on the past due amount at the lesser of 1.5% per month or the maximum amount permitted by law. If an account has fees that are not paid in a timely manner, we then reserve the right to suspend our Services, terminate the licensing arrangements under which you receive a license to use, or suspend your access to, External Computing Options provided through LS, withhold delivery of any deliverables, or withdraw from this engagement entirely. If any collection action is required, you agree to reimburse us for all our costs of collection, including without limitation, attorneys’ fees.
11. Assignment and Sole Recourse. In performing the Services hereunder, LS may assign its rights to perform a portion of the Services to and may engage the service of independent contractors or affiliates of LS (each, a “Subcontractor”) without Client’s prior consent.
If such Subcontractor is utilized or assignment is made, Client agrees that, unless Client contracts directly with Subcontractor, all the applicable terms and conditions set forth in the Agreement, shall apply to Subcontractor. LS agrees that it shall not permit Subcontractor to perform any work relating to the Services until Subcontractor agrees to be bound by the applicable terms and conditions of the Agreement. LS further agrees that it will remain primarily responsible for the Services, unless Client and LS agree otherwise, and LS will supervise the work of Subcontractor to ensure that the work performed relating to the Services is in accordance with this Agreement.
From time to time, and depending on the circumstances, Subcontractors located in other countries may participate in the Services, and, in some cases, LS may transfer information to or from the United States or another country. Although applicable privacy laws may vary depending on the jurisdiction and may provide less or different protection than those of Client’s home country, LS requires Subcontractors to agree to maintain the confidentiality of Client’s information and observe LS’s policies concerning any confidential client information that LS provides to Subcontractors.
You agree that you shall bring no Claims against any Member Firm that is a Subcontractor in any way arising from, in respect of or in connection with the Services or this Agreement, except to the extent finally judicially determined to have resulted from the fraud or intentional misconduct of such Member Firm. A Member Firm that is a Subcontractor may enforce any limitations or exclusions of liability available to LS under this Agreement.
Without our prior written consent, Client may not assign this Agreement.
12. Dispute Resolution. Any dispute or claim between you and LS arising out of or relating to the Agreement or a breach of the Agreement, including, without limitation, claims for breach of contract, professional negligence, breach of fiduciary duty, misrepresentation, fraud or claims based in whole or in part on any other common-law, statutory, regulatory, legal or equitable theory, and disputes regarding all fees, including attorneys’ fees of any type, and/or costs charged under this Agreement (“Arbitration Claims”) (except to the extent provided below) shall be submitted to binding arbitration administered by the American Arbitration Association (“AAA”), in accordance with its Commercial Arbitration Rules.
Arbitration Claims shall be brought in a party’s individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. Arbitration Claims shall be heard by a panel of three (3) arbitrators, to be chosen as follows: within fifteen (15) days after the commencement of arbitration, each party shall select one person to act as arbitrator; thereafter, the two individually selected arbitrators shall select a third arbitrator within ten (10) days of their appointment. If the arbitrators selected by the parties are unable or fail to agree upon the third arbitrator, the third arbitrator shall be selected by the AAA. The arbitration panel shall have the power to rule upon its own jurisdiction and authority, including any objection to the initial or continuing existence, validity, effectiveness, or scope of this arbitration agreement. The arbitration panel may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding. The arbitration panel shall have no authority to award non-monetary or equitable relief, but nothing herein shall be construed as a prohibition against a party from pursuing non-monetary or equitable relief in a federal or state court.
The place of arbitration shall be in the city of Boca Raton, Florida, USA, unless the parties agree in writing to a different location. Regardless of where the arbitration proceeding takes place, all aspects of the arbitration and the Agreement shall be governed by the provisions of the laws of the State of Florida (except if there is no applicable state law providing for such arbitration, then the Federal Arbitration Act shall apply) and the procedural and substantive law of such state shall be applied without reference to conflict of law rules.
The parties shall bear their own legal fees and costs for all Arbitration Claims. The award of the arbitrators shall be accompanied by a reasoned opinion, and judgment on the award rendered by the arbitration panel may be entered in any court having jurisdiction thereof. Except as may be required by law or to enforce an award, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of the parties to the Agreement.
The parties to the Agreement acknowledge that by agreeing to this arbitration provision, they are giving up the right to litigate claims against each other, and important rights that would be available in litigation, including the right to trial by judge or jury, to extensive discovery and to appeal an adverse decision.
The parties acknowledge that they have read and understand this arbitration provision, and that they voluntarily agree to binding arbitration.
13. Conflicts of Interest. LS is not aware of any conflicts of interest with respect to any of the names Client has provided. LS is not responsible for continuously monitoring other potential conflicts that could arise during the engagement, although we will inform Client promptly should any come to our attention. We reserve the right to resign from this engagement at any time if conflicts of interest arise or become known to us. Additionally, our engagement by Client will in no way preclude us from being engaged by any other party in the future.
Notwithstanding anything contained in confidentiality provisions set forth herein, LS shall be permitted to disclose that it is engaged to provide the Services to Client under this Agreement if LS in its reasonable professional judgment determines that such disclosure is required in connection with LS’s provision of services on behalf of other clients of LS, including, without limitation, professional services engagements under which LS personnel act as professionals in legal proceedings that require disclosures, arbitrators in post-acquisition disputes or act as expert witnesses.
14. Power and Authority. Each of the parties hereto has all requisite power and authority to execute and deliver this Agreement and to carry out and perform its respective obligations hereunder. This Agreement constitutes the legal, valid, and binding obligations of each party, enforceable against such party in accordance with its terms.
15. Subpoenas. If Client requests LS to object to or respond to, or LS receives and responds to, a validly issued third party subpoena, court order, government regulatory inquiry, or other similar request for, or legal process for the production of, documents and/or testimony relative to information we obtained and/or prepared during the course of this or any prior engagements with Client, you agree to compensate us for all time LS expends in connection with such response, at our standard rates, and to reimburse LS for all related out-of-pocket costs (including outside attorneys’ fees) that we incur.
16. Email Communications. LS disclaims and waives, and the Client releases LS from all liability for the interception or unintentional disclosure of e-mail transmissions or for the unauthorized use or failed delivery of e-mails transmitted or received by LS in connection with the performance of the Services.
17. External Computing Options. If, at the Client’s request, LS agrees to use certain external commercial services, including but not limited to services for cloud storage, remote access, third party software and/or file sharing options (collectively “External Computing Options”), that are outside of LS’s standard security protocol, the Client acknowledges that such External Computing Options may be associated with heightened security and privacy risks. Accordingly, LS disclaims, and the Client agrees to release LS from, and indemnify LS for, all liability arising out of or related to the use of such External Computing Options.
18. Electronic Transmissions. This Agreement may be transmitted in electronic format and shall not be denied legal effect solely because it was formed or transmitted, in whole or in part, by electronic record; however, this Agreement must then remain capable of being retained and accurately reproduced, from time to time, by electronic record by the parties to this Agreement and all other persons or entities required by law. An electronically transmitted signature to this Agreement will be deemed an acceptable original for purposes of consummating this Agreement and binding the party providing such electronic signature.
19. Severability. If any portion of this Agreement is held to be void, invalid, or otherwise unenforceable in whole or in part, for any reason whatsoever, such portion of this Agreement shall be amended to the minimum extent required to make the provision enforceable and the remaining portions of this Agreement shall remain in full force and effect.
20. Independent Contractor. LS is providing the Services to Client as an independent contractor bound by the terms hereof to perform the Services pursuant to the Client’s instructions. LS’s obligations to Client are exclusively contractual in nature. This Agreement does not create any agency, employment, partnership, joint venture, trust, or other fiduciary relationship between the parties. Neither LS nor Client shall have the right to bind the other to any third party or otherwise to act in any way as a representative or agent of the other except as otherwise agreed in writing between the parties.
21. Confidentiality. Each of the parties hereto shall treat and keep all the “Confidential Information” as confidential, with at least the same degree of care as it accords to its own confidential information, but in no event less than a reasonable degree of care. Each party shall disclose the Confidential Information only to its employees, partners, contractors, agents or its legal or other advisors, provided that they have: (i) each been informed of the confidential, proprietary, and secret nature of the Confidential Information, or are subject to a binding, preexisting obligation of confidentiality no less stringent than the requirements of this Agreement and (ii) a demonstrable need to review such Confidential Information. “Confidential Information” means all non-public information that is marked as “confidential” or “proprietary” or has commercial value in the party’s business and is obtained by one party (the “Receiving Party”) from the other party (the “Disclosing Party”).
All terms of this Agreement are considered Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include any information that was or is: (a) known to the Receiving Party prior to disclosure by the Disclosing Party; (b) as of the time of its disclosure, or thereafter becomes, part of the public domain through a source other than the Receiving Party; (c) made known to the Receiving Party by a third person who is not subject to any confidentiality obligation known to Receiving Party and such third party does not impose any confidentiality obligation on the Receiving Party with respect to such information; (d) required to be disclosed pursuant to governmental authority, professional obligation, law, decree regulation, subpoena or court order; or (e) independently developed by the Receiving Party.
If LS is providing tax services for the Client, in no case shall the tax treatment or the tax structure of any transaction be treated as confidential as provided in Treas. Reg. sec. 1.6011-4(b)(3). If LS is providing services for a Client that involves government contracting, LS shall be permitted to disclose to any government or regulatory agency requesting such information the name of the LS Client and any related information requested by such government or regulatory agency. If disclosure is required pursuant to subsection (d) above, the Receiving Party shall (other than in connection with routine supervisory examinations by regulatory authorities with jurisdiction and without breaching any legal or regulatory requirement), to the extent legally permissible, provide prior written notice thereof to allow the Disclosing Party to seek a protective order or other appropriate relief.
Upon the request of the Disclosing Party, the Receiving Party shall return or destroy all of the Confidential Information except for: (y) copies retained in work paper files retained to comply with a party’s professional or legal obligations; and (z) such Confidential Information retained in accordance with the Receiving Party’s normal data back-up procedures.
22. Intellectual Property. LS shall retain the right to reuse the ideas, concepts, know-how, and techniques derived from the rendering of the Services so long as it does not require the disclosure of any of Client’s Confidential Information (as defined above). LS shall be entitled to all protections afforded under State and Federal statutory or common law with respect to any report, computer program (source code and object code) or programming and/or material documentation, manual, chart, specification, formula, database architecture, template, system model, copyright, diagram, description, screen display, schematic, blueprint drawing, tape, license, listing, invention, record, development frameworks, code libraries, best practices, general knowledge, skills and experience, or other materials preexisting the execution of this Agreement (“LS Intellectual Property”). Unless otherwise specifically stated in this Agreement, the reproduction, distribution, or transfer, by any means or methods, whether direct or indirect, of any of LS’s or its agents’ Intellectual Property or proprietary information by the Client is strictly prohibited.
23. Licensing Representation. To the extent necessary for LS to perform its obligations described in an applicable SOW, Client represents and warrants that it will obtain, maintain and comply with all of the licenses, consents, permits, approvals and authorizations that are necessary to allow LS and its employees, contractors and subcontractors to access and use the services or software provided for the benefit of Client under Client’s third-party services contracts, licenses or other contracts granting Client the right to access, use or receive services or software (each a “Licensing Representation”). Upon LS’s request, Client will provide LS any references available evidencing the Licensing Representation (e.g., order number, customer support identifier). Tools subject to this Licensing Representation are hereby deemed External Computing Options (as defined in this Agreement). Client hereby releases LS Group from all claims and liabilities resulting from (i) LS’s reliance on a Licensing Representation and (ii) the functionality of any third-party software or services used or accessed by LS.
24. Non-CPA Notice Requirement. LS is owned by professionals who hold CPA licenses. Depending on the nature of the Services being provided, from time to time non-CPA personnel may be involved in providing certain Services hereunder.
25. Entire Agreement. This Agreement sets forth the entire agreement between the parties with respect to the subject matter herein, superseding all prior agreements, negotiations, or understandings, whether oral or written, with respect to the subject matter herein. This Agreement may not be changed, modified, or waived in whole or part except by an instrument in writing signed by both parties.