SERVICES GENERAL TERMS AND CONDITIONS
This document provides the Wiss & Company, LLP (“Wiss”) and its affiliates (including West Growth, LLC) general terms and conditions (the “Terms”) regarding its Services as provided under the engagement letter agreement (the “Engagement Letter” or “Agreement”) that references these Terms. Capitalized terms used and not otherwise defined herein shall have the meanings given in the Agreement. In the event of any conflict between these Terms, and any provisions of any Exhibit attached to the Engagement Letter, such Exhibit shall govern and control. These Terms may also be referred to herein as the “Agreement.”
Payments to Wiss for Services rendered shall be pursuant to the specific terms of the SOW Exhibit in which such Services are specified, and under which Client shall pay fees to Wiss (“Fees”). All undisputed Fees due to Wiss shall be payable within ten (10) days after the date of invoice receipt as tendered by Wiss to Client. All monetary amounts referred to in this Agreement are in U.S. Dollars (“USD”).
As pre-approved in writing by Client, Client shall reimburse Wiss for reasonable and itemized expenses that Wiss may incur as incidental to performing Wiss obligations hereunder (“Expenses”). Such Expenses may involve, but not be limited to, travel and/or living expenses for Wiss personnel, where such Expenses are incurred for the sole purpose of providing the Services. Wiss will bill via invoice all such Expenses at cost for reimbursement.
2.3 Payment Disputes.
Client agrees that it shall submit any dispute regarding billed amounts in writing (including email) to Wiss within ten (10) days of the invoice date, and that it may not dispute any invoice amounts after such ten (10) day period. Otherwise, all payment disputes shall be resolved via the dispute resolution provisions of this Agreement. Client’s failure to pay any undisputed Fees within sixty (60) days after the date of invoice receipt shall be a material breach of this Agreement.
2.4 Late Payments.
For invoices not paid in full after sixty (60) days, the following will occur:
• Written communication will be sent to the Client;
• Accounting services will be suspended for invoices that are ninety (90) days past due;
• Dashboard services will be frozen for invoices that are ninety (90) days past due; and
• Any additional requests for Services will require payment of an advance retainer.
The Services provided through any SOW Exhibit are subject to the following additional terms.
3.1 Services Limitations.
3.1.1 The Fees for Services to process Client’s books so that they are up-to-date and reconciled through a certain date, if applicable, will be determined at a later date once the scope of work has been clearly identified.
3.1.2 Client expressly agrees that Services do not constitute an audit, review, or compilation of Client’s financial statements in accordance with the standards established by the American Institute of Certified Public Accountants.
3.1.3 Wiss will perform the Services on a limited-scope, as-needed basis, which necessarily limits Wiss’s involvement and knowledge of Client’s daily operations. Because of this, there is a risk that Client’s operations may be subject to material errors, irregularities or illegal acts (including, without limitation, fraud or defalcation), that may exist but may not be detected by Wiss. By executing this Agreement, Client acknowledges this fact, and agrees to indemnify Wiss for any liabilities it incurs in the event of any of the foregoing material errors, irregularities or illegal acts.
3.2 Client Responsibilities.
3.2.1 Client acknowledges that with respect to the Services provided under the SOW, Client’s management is responsible for:
• Making all management decisions and performing management functions;
• Designating an individual who possesses suitable skill, knowledge, and/or experience, preferably within senior management, to oversee the Services;
• Evaluating the adequacy and results of the Services performed by Wiss;
• Accepting responsibility for the results of the Services; and
• Establishing and maintaining internal controls, including monitoring activities.
3.2.2 Client management accepts full responsibility for the oversight and review of any journal entries posted, and acknowledges that the journal entries are at management’s direction and based solely on information provided by management.
3.3 Wiss Disclaimers.
3.3.1 An objective of Wiss’s engagement is to prepare certain financial information in accordance with a modified cash basis using information provided by Client. Wiss will conduct its engagement in accordance with Statements on Standards for Accounting and Review Services (SSARS) promulgated by the Accounting and Review Services Committee of the AICPA, and will comply with the AICPA’s Code of Professional Conduct, including ethical principles of integrity, objectivity, professional competence, and due care.
3.3.2 Wiss is not required to, and will not, verify the accuracy or completeness of the information Client provides for the engagement or otherwise gather evidence for the purpose of expressing an opinion or a conclusion. Accordingly, Wiss will not express an opinion or a conclusion or provide any assurance with respect to Client financial statements.
3.3.3 Client may not rely on Wiss’s engagement to identify or disclose any financial information misstatements, including those caused by fraud or error, or to identify or disclose any wrongdoing within the entity or noncompliance with laws and regulations. Wiss, however, will inform the appropriate level of Client management of any material errors and any evidence or information that fraud may have occurred, to the extent that same comes to Wiss’s attention during the performance of the Services. In addition, Wiss will inform Client of any evidence or information that comes to Wiss’s attention while performing the Services, regarding any wrongdoing within the Client entity or noncompliance with laws and regulations that may have occurred, unless they are clearly inconsequential.
3.3.4 Triggers/Alerts; Service Provider Introductions. The Wiss dashboard software that may be provided as part of the Services includes capabilities for Wiss to alert Client and introduce Client to third-party service providers (“Service Providers”) that Client may choose to contact, either based upon the occurrence of certain events or triggers or via other referrals in the “Services” portion of the dashboard. For example, if Client meets certain spending thresholds, the Wiss software may send an alert to Client with an introduction to opportunities for third party Service Provider loan services. Client understands and agrees that Wiss may receive referral fees from such third-party Service Providers in consideration of introducing Client to the Service Providers. Client’s use of such Service Providers is subject to separate agreements solely between Client and such third-party Service Providers, and Client expressly acknowledges and agrees that Wiss will have no liability under such agreements or for such third-party services by virtue of introducing Client to the Service Providers or otherwise. Client further understands and agrees that Wiss bears no responsibility or liability with respect to any information or data that Client may share, receive or exchange with any third-party Service Provider, and Client’s contact with a third-party Service Provider is solely at Client’s option. Wiss’s introduction of Client to third party services does not constitute any form of endorsement or recommendation of such third-party services.
3.4 Client Acknowledgements.
3.4.1 Client acknowledges and understands that Wiss provides Services to prepare Client’s financial information on a modified cash basis in accordance with the Statement of Standards for Accounting and Review Services (“SSARS”). Accordingly, Client is responsible for: 1) The selection of modified cash basis as the financial reporting framework to be applied in the preparation of the financial information; 2) The design, implementation and maintenance of internal controls relevant to the preparation and fair presentation of financial information that is free from material misstatement, whether due to fraud or error; 3) The prevention and detection of fraud; 4) Assurance that Client entities comply with the laws and regulations applicable to its activities; 5) Assurance of the accuracy and completeness of the records, documents, explanations, and other information, including significant judgments, that Client provides to Wiss for the engagement to prepare financial information; and 6) Providing Wiss with—
• Documentation, and other related information that is relevant to the preparation and presentation of the financial information,
• Additional information that Wiss may request for the purpose of preparing the financial information, and
• Unrestricted access to Client personnel with whom Wiss deems it necessary to communicate for purposes of providing the Services.
3.4.2 Client understands that the financial information provided by Wiss hereunder will not be accompanied by a report. Client further agrees that such financial information will clearly indicate that no assurances are provided under the following wording at the bottom of each page of the financial statements: “The financial information was prepared on a modified cash basis, but was not subjected to an audit, review, or compilation engagement, and thus no associated assurances are provided. The financial information omits substantially all disclosures that are required by the modified cash basis of accounting.”
4.1 Termination by Client. Client may terminate this Agreement or an SOW for any reason or no reason upon thirty (30) days’ prior written notice.
4.2 Termination by Wiss.
4.2.1 Wiss may terminate this Agreement or an SOW for any reason or no reason upon thirty (30) days’ prior written notice.
4.2.2 Wiss may suspend Services if Client fails to provide required requested information, or fails to timely pay the Fees for the Services as specified in an SOW. Upon Client’s failure to pay amounts due, Wiss in its sole discretion may discontinue performing Services until all outstanding balances are paid, and/or may terminate this Agreement or the applicable SOW upon ten (10) days’ written notice. If Wiss suspends its Services because of Client’s failure to timely pay undisputed Fees, and Client later pays such overdue Fees and requests that Services be resumed, Wiss will resume the Services and provide Client with an updated timeline for completion of any past due work, subject to any resulting delays in processing. Updating past due work will be charged at an amount equal to 50% of the regular monthly fee. During suspension, the Client is required to either pay $100 per month for software fees, or transfer the software to their business and pay the related fees.
4.2.3 Wiss may immediately suspend Services or terminate this Agreement or an SOW if, during the course of providing the Services, Wiss becomes aware of any matters that would compromise its professional or legal standing in any way, either in fact or based on confirmed or potential public perception.
4.3 Termination for Cause.
Either party may terminate this Agreement if the other party hereto materially breaches any of its obligations hereunder by serving notice upon the breaching party, detailing therein the nature of the subject breach. Termination shall be effective fifteen (15) days following the breaching party’s receipt of said notice, without further action by the non-breaching party, unless the subject breach has been cured prior to the expiration of such fifteen (15) day period. A waiver of any such breach shall not constitute a waiver of any succeeding breach.
4.4 Client-Requested Suspension of Services.
Upon fifteen (15) days advance notice, Client may request Wiss to temporarily suspend providing Services being delivered pursuant to an SOW. Upon such request, Wiss may in its sole discretion elect to so suspend Services and waive the payment of Fees during such period of suspension (“Suspension Period”), where such Suspension Period will be reasonably agreed upon by the parties. Notwithstanding the foregoing, during any such Suspension Period, Client shall directly pay the fees of all third party software vendors for all software that is used in providing the Services (“Software Fees”), and/or failing to pay such Software Fees, Client shall pay any start-up fees for such software after the end of the Suspension Period before Wiss will resume Services. Wiss may further charge its own additional restart Fees at the end of the Suspension Period before Wiss will resume Services. Client’s failure to restart Services after the end of the agreed upon Suspension Period and pay all associated restart Fees shall be a material breach of this Agreement.
4.5 Client Tax Compliance.
Client shall comply with all applicable tax laws with respect to paying payroll taxes, meeting tax deadlines, paying franchise and property taxes, issuing 1099 forms to contractors and the like (“Client Tax Compliance”). Client’s failure to meet all Client Tax Compliance requirements shall be a material breach of this Agreement.
4.6 Effect of Termination.
4.6.1 In the event that either party terminates this Agreement for convenience under Sections 4.1 or 4.2, or if Wiss terminates this Agreement for cause under Section 4.3, then Client shall continue to pay Wiss Fees and Expenses for Services provided prior to such termination pursuant to the terms of this Agreement. Client’s obligation to make such payments after termination, however, shall not survive or apply if Client terminates this Agreement for cause pursuant to Section 4.3. 4.6.2 In the event of any termination of this Agreement, Client shall assume responsibility for any transfer or continuation of associated third party vendor services as applicable.
4.6.3 In the event that Wiss Services are suspended or terminated for any reason as provided herein, Client agrees that Wiss will not be responsible: i) for any Client failure to meet government and other deadlines; or ii) for any penalties or interest that may be assessed against Client resulting from Client’s failure to meet such deadlines.
4.6.4 Upon termination, each party shall deliver or destroy all Confidential Information (as defined below), property, documentation or records of the other party that are in its possession, care or control at such other party’s election (except for information which is required to be kept for backup or data retention purposes, in which case such information will be kept confidential in accordance with Section 8 until deletion), and upon the other party’s request, provide a written certification of the same. Upon termination, any licenses granted hereunder or in an SOW shall terminate.
4.6.5 If Services are terminated for any reason, and Wiss is required or requested to assist the Client in any off-boarding tasks, Wiss will bill and the Client shall pay for such assistance.
5.1 Each party represents and warrants the following:
(a) the party’s execution, delivery and performance of this Agreement:
(i) have been authorized by all necessary corporate action,
(ii) do not violate the terms of any law, regulation, or court order to which such party is subject or the terms of any material agreement to which the party or any of its assets may be subject and
(iii) are not subject to the consent or approval of any third party;
(b) this Agreement is the valid and binding obligation of the representing party, enforceable against such party in accordance with its terms; and
(c) such party is not subject to any pending or threatened litigation or governmental action which could interfere with such party’s performance of its obligations hereunder.
5.2 Wiss represents and warrants that it shall perform its obligations under this Agreement: i) in a good and professional manner exercising all due diligence and reasonable care; ii) in compliance with all laws, rules, regulations, orders, and other legally binding pronouncements of any governmental authority, foreign or domestic, applicable to and governing such its performance of its obligations hereunder.
5.3 Wiss does not warrant that the Services will be complete, accurate, timely and/or fit Client’s specifications except as described in an SOW, and Wiss will not be liable if it does not perform the Services within the timeframes described in this Agreement or an SOW.
5.4 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, NEITHER PARTY MAKES ANY WARRANTIES, AND EACH PARTY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, WITH RESPECT THERETO, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT.
6.1 IN NO EVENT WILL WEST BE LIABLE TO CLIENT FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ITS SUBJECT MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE EVEN IF WEST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.2 IN NO EVENT SHALL EITHER PARTY’S LIABILITY TO THE OTHER EXCEED THE AGGREGATE AMOUNTS PAID OR OWED BY CLIENT TO WEST UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE FIRST OCCURRENCE OF THE EVENTS GIVING RISE TO ANY CLAIM.
6.3 NOTWITHSTANDING ANY STATEMENT TO THE CONTRARY IN THIS AGREEMENT, THE LIMITATIONS OF LIABILITY OF THIS SECTION SHALL NOT APPLY TO A PARTY’S OBLIGATIONS OF INDEMNIFICATION, OR CLAIMS OF A BREACH OF CONFIDENTIALITY, GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT, OR CLAIMS ARISING FROM MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR VIOLATION OF APPLICABLE LAWS OR REGULATIONS.
7.1 Client (the “Indemnifying Party”) hereby covenants and agrees to indemnify Wiss, its affiliated Customers, owners, officers, directors, employees, and agents (the “Indemnified Party”); and to defend and hold the Indemnified Party harmless from and against any and all liabilities, damages, costs and expenses (including all legal and professional fees) (“Losses”) arising out of or relating to any claim, action, suit, complaint or other proceeding (which are hereinafter collectively referred to as “Claim(s)”) brought by a third party based in whole or in part upon any of the following: (i) any breach of any of the obligations, terms, or conditions of this Agreement by the Indemnifying Party or its personnel; (ii) the conduct of the Indemnifying Party or its personnel in performing actions or business pursuant to this Agreement; (iii) the failure of Indemnifying Party or its personnel to comply with applicable federal, state, or municipal laws regulations, guidelines or policies; (iv) any act or omission of the Indemnifying Party or any of its personnel arising, either directly or indirectly, under or pursuant to this Agreement; (v) the injury or death of any person, or damage to or destruction of any property, which injury or damage is directly or indirectly caused by any act or omission of the Indemnifying Party or any of its personnel pursuant to this Agreement, or (vi) any claims for payments, employment rights or employment-related benefits arising out of acts or omissions of the Indemnifying Party or any of its personnel pursuant to this Agreement.
7.2 When seeking indemnification, the Indemnified Party shall:
1) promptly notify the Indemnifying Party in writing of the Claim for which indemnification is sought,
2) upon Indemnifying Party’s request, permit the Indemnifying Party to control the defense and settlement negotiations of the Claim,
3) cooperate with the Indemnifying Party as reasonably requested to assist in the defense and/or settlement of the Claim, and
4) have the right to provide for its own separate defense at its own expense. Notwithstanding the foregoing, the failure to give notice to the Indemnifying Party within a reasonable time of the commencement of any Claim under this Section will not relieve the Indemnifying Party of any liability to the Indemnified Party under this Section unless such failure materially prejudices the Indemnifying Party’s ability to defend such Claim.
8.1 “Confidential Information” means any and all confidential information of a party disclosed to the receiving party, including, but not limited to, proprietary software, technical information, know-how, trade secrets, marketing data, customer lists, business/financial information, and pricing information. A party’s Confidential Information shall not include information that:
(a) is or becomes a part of the public domain through no act or omission of the receiving party;
(b) was in the receiving party’s lawful possession prior to the disclosure and had not been obtained by the receiving party either directly or indirectly from the disclosing party;
(c) is lawfully disclosed to the receiving party by a third party without any obligation of confidentiality to the disclosing party; or
(d) is independently developed by the other party.
8.2 In the course of performance of this Agreement, each party may receive Confidential Information of the other party. Any and all Confidential Information in any form or media obtained by a receiving party shall be held in confidence and shall not be copied, reproduced, or disclosed to third parties for any purpose whatsoever, except as necessary in connection with the obligations of the parties under this Agreement. Each receiving party agrees that it
(i) will not disclose the Confidential Information of the disclosing party to any third party except as required by law
(ii) will take reasonable precautions to protect the confidentiality of such Confidential Information, and
(iii) will only use such Confidential Information for the purposes of performing under this Agreement. Notwithstanding the foregoing, a receiving party may disclose Confidential Information to its employees, consultants, affiliates or professional advisers who have a need to know such information for the purposes of this Agreement, provided that the party so disclosing Confidential Information shall be responsible for compliance by such persons with the requirements of this Section.
8.3 A disclosure by a receiving party of any of the disclosing party’s Confidential Information
(1) in response to a valid order by a court or other governmental body;
(2) as otherwise required by law; or
(3) necessary to establish the rights of either party under this Agreement shall not be considered to be a breach of this Agreement by the receiving party; provided, however, that receiving party must provide prompt prior written notice thereof to the disclosing party to enable disclosing party to seek a protective order or otherwise prevent the disclosure. Further, the receiving party shall disclose only the minimum amount of the Confidential Information that it is legally required to furnish and, where appropriate, will exercise its best efforts to obtain written assurances that confidential treatment will be accorded to such Confidential Information.
8.4 In the case of a breach of the confidentiality provisions of this Section, the parties hereby agree that their respective remedies at law are inadequate, and consent to equitable enforcement of their obligations under said provisions without the requirement to show irreparable harm, by a court of appropriate equity jurisdiction hereunder.
9.1 Client Data.
The parties agree that “Client Data” shall mean all data and information, without limitation, relating to Client’s clients, employees, consultants, operations, facilities, procedures, security practices, business affairs and finances to which Wiss has access or processes in connection with the provision of the Services. Wiss further acknowledges that the Client Data may include Personally Identifiable Information (“PII”) subject to the privacy protections of applicable laws. All Client Data shall at all times remain the exclusive property of Client and shall be considered to be Client Confidential Information.
9.2 Client Data Security.
Wiss shall maintain and enforce reasonable industry standard safety and physical security procedures to protect any Client Data in its possession. Such protections shall include, but not be limited to, (1) encrypting transmitted Client Data, (2) securing the computer systems and network devices upon which such Client Data are stored or processed, and (3) protecting against intrusions of operating systems or software. Wiss shall monitor all applicable equipment, environments, and communication links under its control for security breaches, violations and suspicious activity, and shall promptly notify Client of such breaches, violations, and activity on a timely basis in a manner to be mutually agreed upon by the parties.
9.3 Aggregated Data.
Provided that Wiss satisfies the Client Data security provisions of Section 9.2, Client hereby grants to Wiss the right to process such Client Data for analytical purposes and to remove from such Client Data any information about any individual from which such individual can be identified. The parties agree that Client Data shall not include such processed data where the identity information has been removed (“Anonymous Data”). Client agrees that Wiss may collect, use and share aggregated Anonymous Data (“Aggregated Data”) such as statistical or demographic data for any purpose. Aggregated Data may be derived from Client Data, but Aggregated Data are not considered to be PII in law, as this information will not directly or indirectly reveal identity of any individual.
10.1 Governing Law; Jurisdiction. This Agreement shall be governed by the laws of the State of New Jersey without giving effect to its choice or conflict of law provisions. All disputes and/or legal proceedings related to this Agreement shall be brought and maintained exclusively in a Federal or state court or other venue located in Newark, New Jersey, and the parties agree to personal jurisdiction and convenient forum therein. 10.2 Dispute Resolution.
10.2.1 The parties agree to attempt in good faith to resolve any controversy, claim, or dispute of any nature whatever arising out of, or relating to, this Agreement, or the breach, termination, enforceability, or validity of this Agreement (a “Dispute”) promptly by negotiation between executives or managers who have authority to settle the Dispute and who are at a higher level of management than the persons who have direct responsibility for the execution of this Agreement.
10.2.2 If the informal procedures of the preceding subsection do not resolve the Dispute within thirty (30) days, the parties agree, as a condition precedent to any litigation or arbitration to, first to try in good faith to settle the dispute by mediation administered by the American Arbitration Association (“AAA”) under its Rules for Professional Accounting and Related Services Disputes. If the parties are unable to resolve the dispute through mediation within ninety (90) days from the date notice is first given from one party to the other as to the existence of a dispute and the demand to mediate, then they may proceed to resolve the matter by arbitration as set forth below. Costs of any mediation proceeding shall be shared equally by all parties.
10.2.3 If the foregoing mediation procedures of the preceding subsection do not resolve the Dispute, the parties hereto agree to submit the dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the AAA then in effect. THE PARTIES UNDERSTAND AND AGREE TO SUBMIT TO ARBITRATION PROCEEDINGS TO SETTLE ANY DISPUTES HEREUNDER, THAT SUCH ARBITRATION WILL BE IN LIEU OF LITIGATION, AND EACH PARTY HEREBY WAIVES THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL IN FAVOR OF THE ARBITRATION PROCEEDING EXCEPT AS PERMITTED UNDER THIS AGREEMENT. The forum for arbitration shall be as provisioned in Section 10.1, above. THE PARTIES HEREBY WAIVE ANY OBJECTION TO THIS VENUE AS INCONVENIENT OR INAPPROPRIATE, AND AGREE TO EXCLUSIVE JURISDICTION AND VENUE IN THE DISPUTE RESOLUTION LOCATION. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five (5) years’ experience in that capacity. If the parties do not agree on an arbitrator within ten (10) calendar days, a party may petition the AAA in order to appoint an arbitrator. The decision of the arbitrator shall be final and binding and no party shall have rights of appeal. This provision shall not limit either party’s right to petition for interim judicial relief, such as an injunction, specific performance or similar relief. In the event Client fails to pay undisputed Fees to Wiss in accordance herewith and should Wiss be required to enforce any of the terms hereof through enforcement proceedings, Client shall be liable for all counsel fees and costs of suit/arbitration. In the event Wiss is required to enforce any award or judgment, Client shall also pay for the cost and counsel fees for the enforcement of such award or judgment.
Neither party may assign or transfer this Agreement without the prior written consent of the other party hereto; such consent not to be unreasonably withheld. Any attempt to assign this Agreement without such consent will be null and void. Notwithstanding the foregoing, either party may assign or otherwise transfer this Agreement to an affiliate or to a third party that is not a direct competitor of the non-assigning party, without requiring consent from the non-assigning party in the event of a sale, merger or other divestiture of substantially all of that assigning party’s assets to such third party, and the existence and terms of this Agreement may be disclosed in confidence to such third party for the sole purpose of effecting such assignment or transfer, provided that the assigning party must give notice of any such assignment or transfer to the other party at least sixty (60) days prior to the time at which such assignment or transfer shall take effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of each of the parties and their respective successors and permitted assigns, and shall not otherwise give rise to any rights to entities other than the immediate parties hereto, including but not limited to third party beneficiary rights.
Notwithstanding Section 10.3, Wiss may delegate its performance of the Services to non-employee agents or independent subcontractors (and their respective employees) that have an effective written agreement with Wiss covering their performance of such Services (“Subcontractors”). Notwithstanding any such delegation of Wiss’s obligations hereunder, Wiss shall, at all times, remain liable to Client for its obligations hereunder and all acts and omissions of any Subcontractor performing any obligations on Wiss’s behalf as if such acts and omissions of such Subcontractor were Wiss’s own. Wiss will prevent such Subcontractors from further delegating, assigning or subcontracting any part of the Services without the express written consent of Wiss.
10.5 Intellectual Property.
“Intellectual Property” or “IP” shall mean any proprietary rights, title and interest in patents, patent applications, extensions, supplementary protection certificates, design rights, data rights, copyrights, trade secrets, trademarks, service marks, trade names, trade dress, know-how, business processes, technology and all other intellectual property rights, derivatives thereof, and any forms of protection of a similar nature anywhere in the world. The term “Intellectual Property” or “IP” may also be used herein to refer to the embodiments (e.g., computer software or data) that are protected by the foregoing IP rights. All IP including any related work product or work in progress that Wiss develops or produces in providing the Services or otherwise under this Agreement, shall be the exclusive property of Wiss. Wiss hereby grants to Client a non-exclusive limited license to use such IP for its internal business purposes as contemplated by this Agreement. All Client data provided to Wiss pursuant to this Agreement remains the property of Client, however Client grants to Wiss a non-exclusive limited license to use such Client data for the purpose of providing the Services.
Client agrees that Wiss may use the Client’s name, logo and statements in its marketing and public relations material. If the Client provides testimonials or is included in a case study that Wiss wishes to use for marketing and public relations, Wiss agrees to obtain the Client’s written approval in advance of such use, which will not be unreasonably withheld.
10.7 No Third-Party Beneficiaries.
Nothing in this Agreement shall create any rights in any third-party beneficiaries, and neither party has any obligation to any third party by virtue of this Agreement.
10.8 Independent Contractor.
The parties agree that each is an independent contractor and this Agreement does not create any employment relationship between the parties for taxation or any other purpose. Each party shall be responsible for the payment of compensation (including provision for employment taxes, workmen’s compensation and any similar taxes) associated with the employment of its personnel. Neither party shall have the right to bind the other to any agreement with a third party, or to incur any obligation or liability on behalf of the other party.
During the Term and for a period of one (1) year thereafter, Client agrees not to directly or indirectly seek to or hire any Wiss employees providing Services under this Agreement without Wiss’s written consent. Nothing contained in this Section shall be deemed to prohibit Client from making general public solicitations for particular positions or job classifications and employing persons who respond thereto. Upon any Wiss employee accepting a position with Client or its affiliates due to Client’s breach of this Section, Client agrees to pay Wiss an amount equal to 50% of the employee’s total yearly compensation based on the Client employment package accepted by such employee.
10.10 Entire Agreement.
This Agreement contains the entire agreement between the parties with respect to the subject matter hereof, and may not be modified or amended except in a writing signed by each of the parties hereto. The terms hereof supersede all prior agreements, understandings, letter of intent and negotiations, both written and oral, among the parties with respect thereto.
The unenforceability of any provision of this Agreement shall not affect the enforceability of any other provision (including without limitation, provisions as to exclusion of damages), and this Agreement shall be construed in all respects as if such unenforceable provisions were omitted.
10.12 No Waiver.
No waiver of any breach or failure to enforce any provision of this Agreement shall in any way limit or waive the right of that party to subsequently enforce and compel strict compliance with this Agreement.
All notices and demands to be given hereunder will be given in writing by personal service, certified mail (with return receipt requested), or by a recognized overnight courier. Except as otherwise provided herein, notice will be deemed to given:
(i) when personally served;
(ii) forty-eight hours after deposit with the United States postal service; or
(iii) on the next business day following deposit with an overnight courier. All notice communications required or permitted by this Agreement will be delivered to the Client identified in the Engagement Letter, and to Wiss as set forth below, or to such other address as either party may from time to time notify the other. Wiss’s primary contact is: Lauren Guaragno Wiss & Company, LLP 100 Campus Drive Suite 400 Florham Park, NJ 07932 10.14 Electronic Mail (“Email”) Communications. The parties agree that they may each communicate hereunder with each other or third parties via email transmission. As emails can be intercepted and read, disclosed, or otherwise used or communicated by unintended third parties, or may not be delivered to the intended recipients to whom the emails directed and only to such recipients, the parties do not guarantee or warrant that such emails will be properly delivered and read only by the intended recipient. Wiss specifically disclaims any liability or responsibility whatsoever arising from the unintentional interception or disclosure of emails transmitted by Wiss in connection with the Services. Client expressly agrees that Wiss shall have no liability hereunder for any loss or damage to any person or entity resulting from the use of email transmissions, including any consequential, incidental, direct, indirect or special damages, loss of revenues or anticipated profits, or damages resulting from the disclosure or communication of Confidential Information.
10.15 Force Majeure.
Neither party shall be responsible to the other for any losses resulting from failure to perform any terms or provisions of this Agreement, except for payment of monies owed, if the party’s failure to perform is attributable to war, riot, or other disorder; strike or other work stoppage; fire; flood; or any other act not within the reasonable control of the party for whom performance is interfered, and that, by reasonable diligence, such party is unable to prevent. Any such occurrence shall be referred to as a “Force Majeure” event.
10.16 Right to Amend.
Wiss may amend or modify these Terms or the entire Agreement at any time, and communicate such amendment to you via direct notice or through the Services. Your continued use of the Services (e.g., dashboard) after we amend or modify these Terms or the Agreement constitutes your consent to the revised Agreement. If you do not agree to the revised Agreement, you may terminate this Agreement at any time pursuant to Section 4.1, hereof.
10.17 No Construction Against Drafter.
The parties agree that any principle of construction or rule of law that provides that an agreement shall be construed against the drafter of the agreement in the event of any inconsistency or ambiguity in such agreement shall not apply to the terms and conditions of this Agreement.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one in the same instrument.
10.19 Headings and Preamble.
The paragraph headings in this Agreement are to be given no legal effect.
All definitions and Sections 1, 2, 4.6, 5.4, 6, 7, 8 and 10 shall survive termination of this Agreement by either party for any reason.