1. General. These Terms and Conditions shall; (I) govern the letter of engagement (the “Engagement Letter”, the letter of Agreement (the “Letter Agreement”) or Statement of Work (“SOW”) referencing it or attaching it (the Engagement Letter, Letter Agreement and SOW are collectively referred to herein as the “Agreement”); and/or (ii) apply to (x) all services Breslow Starling Frost Warner Boger Hiatt, PLLC (“Breslow”) or Breslow Starling Advisors, LLC (“Breslow Advisors”) performs at Client’s request (the “Services”) even if such Services are not expressly covered by an Agreement; and (y) the relationship between Breslow Advisors and Client. To the extent there is any conflict or inconsistency between the Terms and Conditions and any Agreement, unless otherwise agreed to in writing, the Terms and Conditions shall prevail.
2. Termination. Breslow’s engagement ends on the earlier of termination (including without limitation, Breslow’s resignation or declining to issue a deliverable) or Breslow delivery of the last deliverable hereunder. Each party shall have the right to terminate the Agreement at any time, with or without cause, by giving written notice to the other party. If the Agreement terminates or is terminated while one or more SOWs remain outstanding, the terms of the Agreement shall continue to govern the SOW, and the entire Agreement shall be deemed finally terminated only upon termination of all outstanding SOWs, or completion of the work thereunder. In addition, Breslow may terminate the Agreement and/or any SOW immediately if Breslow reasonably determines that it must do so in order to comply with applicable professional standards, applicable laws or regulations (e.g., a conflict of interest arises) or non-payment of our invoiced fees and costs, your inability or unwilling ness to fulfill your obligations to us as described above, including the provision of documents or other information in a timely fashion, or if, in the sole discretion of the terminating party, any continuation of the engagement would be contrary to law or professional standards, or otherwise harmful or improper. If the Agreement and/or any SOW is terminated, Client agrees to compensate Breslow for the Services performed, and expenses incurred through the effective date of termination. Any legal action or proceeding asserting a claim against Breslow arising out of or relating to this engagement shall be asserted within ONE (1) YEAR from the termination of Breslow engagement hereunder.
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 Breslow and its members, partners, employees, contractors and agents from and against any and all third-party claims, liabilities, or expenses relating to the Services in contract, statute, or tort. Client further agrees to release, indemnify and hold harmless Breslow from any liability and costs relating to the Services attributable to any misrepresentations made by Client or to inaccurate or incomplete information provided by Client to Breslow. Except to the extent finally determined to have resulted from Breslow gross negligence or intentional misconduct, Breslow liability shall not exceed the aggregate amount of fees paid by Client to Breslow during the 12 months preceding the date of the claim pursuant to the applicable Agreement or such other work performed outside an Agreement, under which the claim arose.
4. Force Majeure. Neither party shall be held liable or responsible to the other party nor be deemed to have defaulted under or breach this Agreement for failure or delay in fulfilling or performing any obligation under the Agreement when such failure or delay is caused by or results from causes beyond the reasonable control of the affected party, including but not limited to fire, floods, embargoes, war acts of war, insurrections, riots, strikes, lockouts or other labor disturbances, or acts of God, provided, however, that the party so affected shall use reasonable commercial efforts to avoid or remove such causes of non-performance, and shall continue performance hereunder with reasonable dispatch whenever such causes are removed. Either party shall provide the other party with prompt written notice of any delay or failure to perform that occurs by reason of force majeure.
5. Dispute Resolution Methods. If any dispute, controversy or claim arises, either party may, upon written notice to the other party, request that the matter be mediated. Such mediation will be conducted by a mediator appointed by and pursuant to the Rules of the American Arbitration Association or such other neutral facilitator acceptable to both parties. Both parties will exert their best efforts to discuss with each other in good faith their respective positions in an attempt to finally resolve such dispute or controversy.
Each party may disclose any facts to the other party or to the mediator which it, in good faith, considers necessary to resolve the matter. All such discussions, however, will be for the purpose of assisting in settlement efforts and will not be admissible in any subsequent litigation against the disclosing party. Except as agreed by both parties, the mediator will keep confidential all information disclosed during negotiations. The mediator may not act as a witness for either party in any subsequent arbitration between the parties.
The mediation proceedings will conclude within sixty days from the receipt of the written notice unless extended or terminated sooner by mutual consent. Each party will be responsible for its own expenses. The fees and expenses of the mediator, if any, will be borne equally by the parties.
If any dispute, controversy, or claim cannot be resolved by mediation, then the dispute, controversy, or claim will be settled by arbitration in accordance with the Rules of the American Arbitration Association (AAA) for the Resolution of Accounting Firm Disputes. No prehearing discovery will be permitted unless specifically authorized by the arbitration panel. The arbitration hearings will take place in the city closest to the place where this Agreement was performed in which the AAA maintains an office, unless the parties agree to a different locale.
The award issued by the arbitration panel may be confirmed in a judgment by any federal or state court of competent jurisdiction. All reasonable costs of both parties, as determined by the arbitrators, including (1) the fees and expenses of the AAA and the arbitrators and (2) the costs, including reasonable attorneys’ fees, necessary to confirm the award in court, will be borne entirely by the non-prevailing party (to be designated by the arbitration panel in the award) and may not be allocated between the parties by the arbitration panel.
Such arbitration shall be binding and final. In agreeing to arbitration, we both acknowledge that the event of a dispute over fees charged by the accountant, each of us is giving up the right to have a dispute decided in a court of law before a judge or jury and instead we are accepting the use of arbitration for resolution.
6. Third Parties and Use and Reliance. All Services hereunder shall be solely for Client’s use and benefit pursuant to our client relationship. This engagement does not create privity between Breslow and any person or party other than you 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 hereunder and Breslow expressly disclaims any responsibility, duty or liability to any third parties.
7. Waiver of Certain Damages. In no event shall Breslow be liable to you or a third party for any indirect, special, consequential, punitive, or exemplary damages, including but not limited to lost profits, loss of revenue, interruption, loss of use, damage to goodwill or reputation, regardless of whether you were advised of the possibility of such damages, regardless of whether such damages were reasonably foreseeable, and regardless of whether such damages arise under a theory of contract, tort, strict liability, or otherwise.
8. Limitations on Detection of Fraud. We have advised you of the limitations of the engagement regarding the detection of fraud and the possible effect on the financial statements (including misappropriation of cash or other assets). We are able to perform, as a separate engagement, extended procedures specifically designed to detect defalcations; however, you have declined to engage us to do so at this time.
9. Use and Reliance/Ownership of Work Papers. The work papers prepared pursuant to the Agreement (i.e., Breslow’s internal documentation to substantiate the Services) are the property of Breslow. Such work papers, constitute confidential, proprietary and trade secret information, and will be retained by Breslow in accordance with our policies and procedures and all applicable laws.
You agree to assume full responsibility for maintaining your original data and records and that Breslow’s has no responsibility to maintain this information. you agree that you will not rely on Breslow’s to provide hosting, electronic security or backup services, e.g., business continuity or disaster recovery services, to you unless separately engaged to do so. You understand that your access to data, records, and information from servers and portals used to exchange information can be terminated at any time and you will not rely on using this to host your data and records.
You additionally acknowledge that as a condition of our Agreement to perform attest services, you agree to the best of your knowledge and belief to be truthful, accurate, and complete in the representations you make to us during the course of the work performed and in written representations provided to us at the completion of the engagement.
In the event that the Services involve protected health information (“PHI”) the use and security of such PHI is the responsibility of Client and shall be addressed in the business associate agreement provided by you and executed separately (“BAA”). The BAA will be incorporated into and made a part of these terms and conditions.
10. Outsourcing. Breslow and Advisors may, from time to time, and depending on the circumstances, use third-party service providers, including contractors, subcontractors and cloud-based service providers, in connection with the provision of Services. Accordingly, we maintain internal policies, procedures and safeguards to protect the confidentiality of your personal information. In addition, we will secure confidentiality Agreements with all service providers to maintain the confidentiality of your information and we will take reasonable precautions to determine that they have appropriate procedures in place to prevent the unauthorized release of your confidential information to others. Furthermore, we will remain responsible for the work provided by any such third-party service provider. We may share your tax return information with these service providers but remain committed to maintaining the confidentiality and security of your information.
In addition, Breslow may assign employees or employees of the Advisors subsidiaries and affiliates and third-party vendors located inside or outside the United States to work on the Client’s engagement and to provide operational support services to Breslow. Client hereby consents to Breslow and Advisors assigning employees and affiliated entities located outside the United States to this engagement, and to the transmitting of Client information to such individuals and affiliated entities as needed to perform the Services to the client and to perform operational Services.
11. Corporate Transparency Act (“CTA”). Assisting you with your compliance with the Corporate Transparency Act (“CTA”), including beneficial ownership information (“BOI”) reporting, is not within the scope of this engagement. You have sole responsibility for your compliance with the CTA, including its BOI reporting requirements and the collection of relevant ownership information. We shall have no liability resulting from your failure to comply with CTA. Information regarding the BOI reporting requirements can be found at https://www.fincen.gov/boi. Consider consulting with legal counsel if you have questions regarding the applicability of the CTA’s reporting requirements and issues surrounding the collection of relevant ownership information.
12. Limitation on Oral and Email Communications; Written Advice. We are available to provide you with business advice, but we are not obligated to do so unless you specifically request us to perform a specific service. It is our policy to put all advice on which a client intends to rely in writing. We believe that is necessary to avoid confusion and make clear the specific nature and limitations of our advice. You should not rely on any advice that has not been put in writing by our firm after a full supervisory review.
13. 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. The Agreement constitutes the legal, valid and binding obligations of each party, enforceable against such party in accordance with its terms.
14. Subpoenas. If Client requests Breslow to object to or respond to, or Breslow receives and responds to, a validly issued third party subpoena, court order, government regulatory inquiry, or other similar request of 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, Client agrees to compensate us for all time Breslow expends in connection with such response, at our regular rates, and to reimburse Breslow for all related out-of-pocket costs (including outside lawyer fees) that we incur.
15. Email Communications. In connection with the Agreement and this engagement, we may communicate with you or others via email transmission, and by signing this letter, you authorize us to do so. Any preliminary conclusions that may be provided in an email are superseded by any final work product. As emails can be intercepted and read, disclosed, or otherwise used or communicated by an unintended third party, or may not be delivered to each of the parties to whom they are directed and only to such parties, we cannot guarantee or warrant that emails from us will be properly delivered and read only by the addressee. Therefore, we specifically disclaim and waive any liability or responsibility whatsoever for interception or unintentional disclosure of emails transmitted by us in connection with the performance of this engagement. In that regard, you agree that we shall have no liability of 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, such as loss of revenues or anticipated profits, or disclosure or communication of confidential or proprietary information.
16. Use of Deliverables and Drafts. You agree you will not modify any deliverables or drafts prepared by Breslow for internal use or for distribution to third parties. You also understand that Breslow may on occasion send you documents marked as draft and understand that those are for your review purpose only, should not be distributed in any way, and should be destroyed as soon as possible.
Our report on any financial statements must be associated only with the financial statements that were the subject of the engagement. You may make copies of our report, but only if the entire financial statements (exactly as attached to our report, including related footnotes) and any supplementary information, as appropriate, are reproduced and distributed with our report. You agree not to reproduce or associate our report with any other financial statements, or portions thereof, that are not the subject of our engagement.
17. External Computing Options. If, at the Client’s request, Breslow agrees to use certain external commercial services, including but not limited to services for cloud storage, remote control, and/or file sharing options (collectively “External Computing Options”), that are outside of Breslow’s standard security protocol, the Client acknowledges that such External Computing Options may be associated with heightened security and privacy risks. Accordingly, Breslow disclaims and waives, and the Client releases Breslow from any and all liability arising out of or related to the use of such External Computing Options.
18. Background checks. Breslow may perform background checks on Client which may require out-of-pocket costs and expenses. The Agreement and Breslow’s performance of Services are expressly contingent upon the satisfactory completion of Breslow’s investigatory procedures and Breslow may decline to accept or withdraw from any engagement or terminate an Agreement or the Client relationship if Breslow becomes aware of adverse information.
19. Acceptance or Continuance. The Agreement and performance of services are expressly contingent upon the satisfactory completion of client acceptance or continuance procedures.
20. Electronic Transmissions. The 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, the Agreement must then remain capable of being retained and accurately reproduced, from time to time, by electronic record by the parties to the 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 the Agreement and binding the party providing such electronic signature.
21. Electronic Sites and Use of Breslow. You agree to notify us if you desire to place our report(s), including any reports on your financial statements, along with other information, such as a report by management or those charged with governance on operations, financial summaries or highlights, financial ratios, etc. on an electronic site. You recognize that we have no responsibility to review information contained in electronic sites.
Any time you intend to reference Breslow’s in any manner in any published materials (including on an electronic site) you agree to provide us with draft materials for review and approval before publishing or posting such information.
22. Severability. If any portion of the Agreement is held to be void, invalid, or otherwise unenforceable in whole or in part, for any reason whatsoever, such portion of the Agreement shall be amended to the minimum extent required to make the provision enforceable and the remaining portions of the Agreement shall remain in full force and effect.
23. Independent Contractor. Breslow is providing the Services to Client as an independent contractor. Breslow’s obligations to Client are exclusively contractual in nature. The Agreement does not create any agency, employment, partnership, joint venture, trust, or other fiduciary relationship between the parties. Neither Breslow 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.
24. Independence. Professional standards require that Breslow and its covered members maintain independence throughout the professional engagement period. In order to preserve our independence, you agree you shall not solicit Breslow or Advisors staff for employment.
If you find it necessary to make an offer of employment and if it is accepted during the term of the engagement and for a period of 18 months after Breslow’s stops providing Services, you will inform the engagement partner prior to entering into any substantive employment discussions.
You additionally agree that we will be paid a one-time employment fee equal to 100 percent of the employee’s highest annual salary. This fee will be payable prior to our personnel commencing employment with you. Provided; however, you shall not be in violation of the non-solicitation covenant set forth herein with respect to any position you advertise in the form of a general solicitation not delivered to or focused upon any single individual.
25. Confidentiality. Each of the parties hereto shall treat and keep any and all of 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. “Confidential Information” means all non-public information that is marked as “confidential” or “proprietary” or that otherwise should be understood by a reasonable person to be confidential in nature that is obtained by one party (the “Receiving Party”) from the other party (the “Disclosing Party”). All terms of the Agreement and all information provided pursuant to the 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.
26. Disclaimer of Legal or Investment Advice. Our Services do not constitute legal or investment advice. You should seek the advice of legal counsel in such matters. Regulatory authorities may interpret circumstances differently than we do. In addition, the applicable laws, regulations, and regulators’ enforcement activities may change over time.
27. Governing Law and Jurisdiction. The terms of this engagement letter and all related matters shall be governed by the laws of the State of North Carolina , without giving effect to any choice or conflict of law principles, provisions or rules relating to conflicts of laws that would require the laws of another jurisdiction to apply.
28. General. Client may not assign or transfer the Agreement, or any rights, licenses, obligations, claims or proceeds from claims arising out of or in any way relating to the Agreement, any Services provided thereunder or any fees for Services to anyone, by operation of law or otherwise, without Breslow’s consent. Breslow may assign the Agreement, including all the rights and benefits thereunder to any affiliate or to an acquirer or successor to its business, or purchaser of all or substantially all of its assets. Stock or interests, or in the event of a reorganization or restructuring and by Client’s signature hereto, Client consents to such assignment and the transfer of Client’s files and information.
29. Entire Agreement: The 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. The Agreement may not be changed, modified, or waived in whole or part except by an instrument in writing signed by both parties.