Terms and Conditions

1.    Term and Termination.  This Agreement shall terminate on the later of three (3) years from the date hereof or on the completion of the Services.  Each party shall have the right to terminate this Agreement at any time by giving written notice to the other party not less than 30 days before the effective date of termination.  In addition, BDO may terminate this Agreement immediately if BDO reasonably determines that it is unable to perform the Services in accordance with applicable laws, regulations or professional standards.  If the Agreement is terminated, the Client agrees to compensate BDO for the Services performed and expenses incurred through the effective date of termination. 

2.    Indemnification and Limitation of Liability.  As the Services are intended for the Client and not third parties, the Client agrees to release, indemnify and hold harmless BDO and its members, partners, employees, contractors, agents and affiliates (collectively “BDO Group”) from and against any and all third-party claims, liabilities, or expenses relating to the Services (collectively, the “Claims”) in contract, statute, or tort.  BDO Group shall not be liable to the Client for any claims relating to the Services for an aggregate amount in excess of the fees paid by the Client to BDO for the services giving rise to the claim during the twelve months preceding the date of the claim, except to the extent finally determined to have resulted from BDO Group’s gross negligence or intentional misconduct.  In no event shall BDO Group be liable for consequential, special, indirect, incidental, punitive, or exemplary losses or damages relating to the Agreement.

3.    Third-Parties and Use.  All Services hereunder shall be solely for the use and benefit of the parties hereto.  This engagement does not create privity between BDO and any person or party other than the parties hereto, 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 BDO hereunder.

4.    Ownership of Work Papers.  The work papers prepared pursuant to this Agreement (i.e. BDO’s internal documentation to substantiate the Services) are the property of BDO.  Such work papers constitute confidential, proprietary and trade secret information, and will be retained by BDO in accordance with our policies and procedures and all applicable laws. 

5.    Assignment and Sole Recourse.  In performing the Services hereunder, BDO may assign its rights to perform a portion of the Services to, and may engage the services of independent contractors, including independent BDO Alliance USA members (a nationwide association of independently-owned local and regional accounting, consulting and service firms), members of the international BDO network of independent member firms (“Member Firms”) or affiliates of BDO (each, a “Subcontractor”) without the Client’s prior consent. If such subcontract or assignment is made, the Client agrees that, unless the Client contracts directly with Subcontractor, all of the applicable Terms and Conditions shall apply to Subcontractor.  BDO 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.  BDO further agrees that it will remain primarily responsible for the Services, unless the Client and BDO agree otherwise, and BDO will supervise the work of Subcontractor to ensure that the work performed relating to the Services is in accordance with applicable professional standards.  From time to time, and depending on the circumstances, a Subcontractor located in other countries may participate in the Services, and, in some cases, BDO 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 the Client’s home country, BDO requires Subcontractor to agree to maintain the confidentiality of the Client’s information and observe BDO’s policies concerning any confidential client information that BDO provides to Subcontractors.  Client agrees that Client shall bring no Claims whether in contract, statute or tort (including, without limitation, negligence) 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 gross negligence or intentional misconduct of such Member Firm.  A Member Firm that is a Subcontractor may enforce any limitations or exclusions of liability available to BDO under this Agreement. 
    The Client may not assign this Agreement without our prior written consent, except to a party that acquires substantially all of the Client’s assets and goodwill.

6.    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 this Agreement and all information provided pursuant to 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 disclosure is required pursuant to subsection (d) above, the Disclosing Party shall (other than in connection with routine supervisory examinations by regulatory authorities with jurisdiction and without breaching any legal or regulatory requirement) provide prior written notice thereof to allow the other party to seek a protective order or other appropriate relief. Upon the request of the Disclosing Party, the Receiving Party shall return or destroy any and all of the Confidential Information except for (i) copies retained in work paper files retained to comply with a party’s professional or legal obligations and (ii) such Confidential Information located on electronic back-up tapes (in accordance with the Receiving Party’s normal data back-up procedures) where such tapes are not easily accessible to Receiving Party’s employees or partners.

    It is our understanding that Protected Health Information (“PHI”) or other information protected by the Health Insurance Portability and Accountability Act, as amended from time to time (“HIPAA”) or other regulations will not be disclosed to us.  To the extent that BDO is to have access to such PHI, the parties shall execute a HIPAA Business Associate Addendum.

7.     Data and Information.  BDO shall be entitled to reasonably rely on and assume, without independent verification, that all representations, assumptions, information and data supplied by the Client and its representatives shall be complete and, to the best of the Client’s knowledge, accurate and have not been altered.  Unless otherwise agreed to by the parties, BDO shall not assume any responsibility for any financial reporting with respect to the Services.

8.    Conflicts of Interest.  BDO is not aware of any conflicts of interest with respect to any of the names Client has provided.  BDO is not responsible for continuously monitoring other potential conflicts that could arise during the course of 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 that, in our judgment, would impair our ability to perform objectively.  Additionally, our engagement by Client on this matter will in no way preclude us from being engaged by any other party in the future.  Notwithstanding anything contained in Section 6 (Confidentiality), BDO shall be permitted to disclose that it is engaged to provide the Services to Client under this Agreement if BDO in its reasonable professional judgment determines that such disclosure is required in connection with BDO’s provision of litigation support services and related services on behalf of other clients of BDO, including, without limitation, professional services engagements under which BDO personnel act as arbitrators in post-acquisition disputes or act as expert witnesses.

9.      Dispute Resolution; Claims.  Any dispute or claim between the parties arising out of or relating to the Agreement or a breach of this Agreement, including, without limitation, claims for breach of contract, professional negligence, breach of fiduciary duty, misrepresentation, fraud and disputes regarding attorney fees and/or costs charged under this Agreement (except to the extent provided below) shall be submitted to binding arbitration before the American Arbitration Association, and subject to the Commercial Arbitration Rules. The arbitration proceeding shall take place in the city in which the BDO office providing the majority of the Services involved is located, unless the parties agree in writing to a different location. The arbitration shall be governed by the provisions of the laws of the State of New York (except if there is no applicable state law providing for such arbitration, then the Federal Arbitration Act shall apply) and the substantive law of such state shall be applied without reference to conflicts of law rules. The parties shall bear their own legal fees and costs for all claims. The arbitration proceedings shall be confidential. Each party acknowledges that by agreeing to this Arbitration provision, it is giving up the right to litigate claims against the other party, 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. Each party acknowledges that it has read and understands this arbitration provision, and that it voluntarily agrees to binding arbitration.

    No claim or action arising out of or relating to this Agreement or the Services hereunder may be brought by either party hereto (i) more than 24 months after the claiming party first knows or has reason to know that the claim or cause of action has accrued, or (ii) more than 60 months following the completion of the Services to which the claim relates. This paragraph will shorten, but in no event extend, any otherwise legally applicable period of limitations on such claims.

10.    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. 

11.     Subpoenas.  If the Client requests BDO to object to or respond to, or BDO 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 the Client, Client agrees to compensate us for all time BDO expends in connection with such response, at our regular rates, and to reimburse BDO for all related out-of-pocket costs (including outside lawyer fees) that we incur.

12.    Email Communications.  BDO disclaims and waives, and the Client releases BDO from, any and 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 BDO in connection with the performance of the Services.

    Any drafts or calculations that BDO sends to Client prior to preparation of any final customized report should be viewed as preliminary.

13.    External Computing Options.  If, at the Client’s request, BDO 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 BDO’s standard security protocol, the Client acknowledges that such External Computing Options may be associated with heightened security and privacy risks.  Accordingly, BDO disclaims and waives, and the Client releases BDO from, any and all liability arising out of or related to the use of such External Computing Options.

14.    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.

15.    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. 

16.    Independent Contractor.  BDO is providing the Services hereunder as an independent contractor. BDO’s obligations herein 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 BDO nor the 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.

17.     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.