These terms and conditions for services (these “Terms“) are the only terms that govern the provision of services by RVG & Company, LLC (the “Firm“) to any party who has engaged the Firm for services (“Client“).
The accompanying order confirmation Engagement Letter (the “Engagement Letter“) and these Terms (collectively, this “Agreement“) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the Engagement Letter, the Engagement Letter shall govern.
These Terms prevail over any of Client’s general terms and conditions regardless whether or when Client has submitted its request for proposal, order, or such terms. Provision of services to Client does not constitute acceptance of any of Client’s terms and conditions and does not serve to modify or amend these Terms.
Services. The Firm shall provide the services to Client as described in the Engagement Letter (the “Services“) in accordance with these Terms.
Our services under this Agreement do not constitute legal or investment advice unless specifically engaged to provide investment advice in the Engagement Objective and Scope section of this Agreement. We recommend that you retain legal counsel and investment advisors to provide such advice.
No Services or Engagement Letter shall be automatically renewed and the Client shall enter into a new Engagement Letter for any and all future Services not part of the original Engagement Letter.
Our professional fees are determined based upon the complexity of the work to be performed, and our professional time. This depends upon the timely delivery, availability, quality, and completeness of the information you provide to us. You agree that you will deliver all records requested and respond to all inquiries made by our on a timely basis.
Performance Dates. The Firm shall use reasonable efforts to meet any performance dates specified in the Engagement Letter, and any such dates shall be estimates only.
Client’s Obligations. Client shall:
cooperate with the Firm in all matters relating to the Services and provide such access to Client’s premises, and such office accommodation and other facilities as may reasonably be requested by the Firm, for the purposes of performing the Services;
respond promptly to any request from the Firm to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for the Firm to perform Services in accordance with the requirements of this Agreement;
provide such Client materials or information as the Firm may reasonably request to carry out the Services in a timely manner and ensure that such Client materials or information are complete and accurate in all material respects; and
obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
Client’s Acts or Omissions. If the Firm’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client or its agents, subcontractors, consultants, or employees, the Firm shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.
If either party wishes to change the scope or performance of the Services, it shall submit details of the requested change to the other party in writing and a new Service Order or Engagement Letter shall be provided and accepted by the Client.
Notwithstanding Section 6(a), the Firm may, from time to time change the Services without the consent of Client provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates set forth in the Engagement Letter.
The Firm may charge for the time it spends assessing and documenting a change request from Client in accordance with the Engagement Letter or Service Order.
Fees and Expenses; Payment Terms; Interest on Late Payments.
In consideration of the provision of the Services by the Firm and the rights granted to Client under this Agreement, Client shall pay the fees set forth in the Engagement Letter.
All fees and costs paid to the Firm are non-refundable.
Client agrees to reimburse the Firm for all reasonable travel and out-of-pocket expenses incurred by the Firm in connection with the performance of the Services.
Client agrees that late fees and costs may be assessed in the event that the Client fails to timely respond to the Firm’s requests or if Client delays providing necessary information to the Firm.
Client agrees that the Firm may bill the Client on an hourly basis for any and all Services performed for Client which are not included in an Engagement Letter, however the Firm shall not be obligated to perform any such Services for Client which are not part of an Engagement Letter.
Client shall pay all invoiced amounts due to the Firm on receipt of the Firm’s invoice. Client shall make all payments hereunder in US dollars using the method of payment provided upon Client’s acceptance of the Engagement Letter.
The Firm will charge a 2.75 percent (2.75%) convenience fee on all Credit Card payments. In order to avoid this additional fee, you may choose to make your payments by electronic check or ACH.
We utilize an automatic billing and payment system to collect our invoices. By processing a payment through our service provider, you are agreeing to their terms and conditions. You agree to allow us to collect and or process payments using the payment method you provided at the time you accepted the Engagement Letter. You authorize us to collect all amounts due as required by the Engagement Letter, as well as any other amounts which may become due in our provision of Services to you.
All outstanding invoices must be paid prior to the release of the deliverable(s) specified in our Engagement Agreement. We do not release incomplete deliverables.
In the event payments are not received by the Firm within 30 days after becoming due, the Firm may:
charge interest on any such unpaid amounts at a rate of 1% per month or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid;
suspend performance for all Services until payment has been made in full without any liability to RVG for damages as a result of any missed deadlines;
terminate the Client; and
withhold any Deliverables specified in the Engagement Letter.
Taxes. Client shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Client hereunder.
Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights“) in and to all documents, work product and other materials that are delivered to Client under this Agreement or prepared by or on behalf of the Firm in the course of performing the Services, including any items identified as such in the Engagement Letter (collectively, the “Deliverables“) except for any Confidential Information of Client or Client materials shall be owned exclusively by the Firm. The Firm hereby grants Client a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free and perpetual basis, solely to the extent necessary to enable Client to make reasonable use of the Deliverables and the Services.
All non-public, confidential or proprietary information of The Firm, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to Clients, pricing, and marketing (collectively, “Confidential Information“), disclosed by the Firm to Client, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the provision of the Services and this Agreement is confidential, and shall not be disclosed or copied by Client without the prior written consent of the Firm. Client agrees to use the Confidential Information only to make use of the Services and Deliverables. The Firm shall be entitled to injunctive relief for any violation of this Section. Confidential Information does not include information that is:
in the public domain;
known to Client at the time of disclosure; or
rightfully obtained by Client on a non-confidential basis from a third party.
Internal Revenue Code §7525, Confidentiality Privileges Related to Taxpayer Communication, provides a limited confidentiality privilege applying to tax advice embodied in taxpayer communications with federally authorized tax practitioners in certain limited situations. This privilege is limited in several important respects. For example, the privilege may not apply to your records, state tax issues, state tax proceedings, private civil litigation proceedings, or criminal proceedings. While we will cooperate with you with respect to the privilege, asserting the privilege is your responsibility. Inadvertent disclosure of otherwise privileged information may result in a waiver of the privilege. Please contact us immediately if you have any questions or need further information about this federally authorized practitioner-client privilege.
Records Retention and Ownership
We will return any original records and documents you provide to us by the conclusion of the engagement. Our copies of your records and documents are solely for our documentation purposes and are not a substitute for your own records and do not mitigate your record retention obligations under any applicable laws or regulations. You are responsible for maintaining complete and accurate books and records, which may include financial statements, schedules, tax returns and other deliverables provided to you by us. If we provide Deliverables or other records to you via an information portal, you must download this information within 30 days. Professional standards preclude us from being the sole repository of your original data, records, or information.
Workpapers and other documents created by us are our property and will remain in our control. Copies are not to be distributed without your written request and our prior written consent. Our workpapers will be maintained by us in accordance with our firm’s record retention policy and any applicable legal and regulatory requirements. A copy of our record retention policy is available upon request.
Our firm destroys workpaper files after a period of 7 years. Catastrophic events or physical deterioration may result in damage to or destruction of our firm’s records, causing the records to be unavailable before the expiration of the retention period, as stated in our record retention policy.
Working Paper Access Requests by Regulators and Others
State, federal and foreign regulators may request access to or copies of certain workpapers pursuant to applicable legal or regulatory requirements. Requests also may arise with respect to peer review, an ethics investigation, the sale of your organization, or the sale of our accounting practice. If requested, access to such workpapers will be provided under the supervision of firm personnel. Regulators may request copies of selected workpapers to distribute the copies or information contained therein to others, including other governmental agencies.
If we receive a request for copies of selected workpapers, provided that we are not prohibited from doing so by applicable laws or regulations, we agree to inform you of such request as soon as practicable. You may, within the time permitted for our firm to respond to any request, initiate such legal action as you deem appropriate, at your sole expense, to attempt to limit the disclosure of information. If you take no action within the time permitted for us to respond, or if your action does not result in a judicial order protecting us from supplying requested information, we may construe your inaction or failure as consent to comply with the request.
If we are not a party to the proceeding in which the information is sought, you agree to reimburse us for our professional time and expenses, as well as the fees and expenses of our legal counsel, incurred in responding to such requests.
Summons or Subpoenas
All information you provide to us in connection with this engagement will be maintained by us on a strictly confidential basis.
If we receive a summons or subpoena which our legal counsel determines requires us to produce documents from this engagement or testify about this engagement, provided that we are not prohibited from doing so by applicable laws or regulations, we agree to inform you of such summons or subpoena as soon as practicable. You may, within the time permitted for our firm to respond to any request, initiate such legal action as you deem appropriate, at your sole expense, to attempt to limit discovery. If you take no action within the time permitted for us to respond, or if your action does not result in a judicial order protecting us from supplying requested information, we may construe your inaction or failure as consent to comply with the request.
If we are not a party to the proceeding in which the information is sought, you agree to reimburse us for our professional time and expenses, as well as the fees and expenses of our legal counsel, incurred in responding to such requests.
Electronic Data Communication and Storage.
In the interest of facilitating our services to you, we may send data over the Internet, temporarily store electronic data via computer software applications hosted remotely on the Internet or utilize cloud-based storage. Your confidential electronic data may be transmitted or stored using these methods. In using these data communication and storage methods, our firm employs measures designed to maintain data security. We use reasonable efforts to keep such communications and electronic data secure in accordance with our obligations under applicable laws, regulations, and professional standards.
You recognize and accept that we have no control over the unauthorized interception or breach of any communications or electronic data once it has been transmitted or if it has been subject to unauthorized access while stored, notwithstanding all reasonable security measures employed by us. You consent to our use of these electronic devices and applications during this engagement.
To enhance our services to you, we will utilize Citrix Sharefile, a collaborative, virtual workspace in a protected, online environment. Citrix Sharefile permits real-time collaboration across geographic boundaries and time zones and allows RVG and you to share data, engagement information, knowledge, and deliverables in a protected environment. In order to use Citrix Sharefile, you may be required by the provider of Citrix Sharefile to execute a client portal agreement and agree to be bound by the terms, conditions and limitations of such agreement. You agree that we have no responsibility for the activities of Citrix Sharefile and agree to indemnify and hold us harmless with respect to any and all claims arising from or related to the operation of Citrix Sharefile.
The Firm is not a host for any of your information. You are responsible for maintaining your own copy of this information. We do not provide back-up services for any of your data or records, including information we provide to you. Portals are utilized solely as a method of transferring data and are not intended for the storage of your information. Information on a portal may be deleted by the Firm.
If you decide to transmit your confidential information to us in a manner other than a secure portal, you accept responsibility for any and all unauthorized access to your confidential information. If you request that we transmit confidential information to you in a manner other than a secure portal, you agree that we are not responsible for any liability, including but not limited to, (a) any loss or damage of any nature, whether direct or indirect, that may arise as a result of our sending confidential information in a manner other than a secure portal, and (b) any damages arising as a result of any virus being passed on or with, or arising from any alteration of, any email message.
Third-Party Service Providers or Subcontractors.
To enhance our availability to meet your professional service needs while maintaining service quality and timeliness, we may use a third-party service provider to assist us. This may include provision of your confidential information to the third-party service provider. We require our third-party service providers to have established procedures and controls designed to protect client confidentiality and maintain data security. As the paid provider of professional services, our firm remains responsible for exercising reasonable care in providing such services, and our work product will be subjected to our firm’s customary quality control procedures.
By accepting the terms and conditions of our engagement, you are providing your consent and authorization to disclose your confidential information to a third-party service provider, if such disclosure is necessary to deliver professional services or provide support services to our firm.
Representation and Warranty.
The Firm represents and warrants to Client that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement. the Firm shall not be liable for a breach of the warranty set forth in this Section.
In the event of any dispute, The Firm shall, in its sole discretion, either:
repair or re-perform such Services (or the defective part); or
credit or refund the price of such Services at the pro rata contract rate; or
if the dispute cannot be resolved, the parties agree first to try to settle the dispute by mediation administered by the American Arbitration Association (“AAA”) under the AAA Accounting and Related Services Arbitration Rules and Mediation Procedures before resorting to arbitration, litigation, or some other dispute resolution procedure. The mediator will be selected by mutual agreement of the parties. If the parties cannot agree on a mediator, a mediator shall be designated by the AAA. The mediation will be conducted in the State of Florida. The mediation will be treated as a settlement discussion and, therefore, all discussions during the mediation will be confidential. The mediator may not testify for either party in any later proceeding related to the dispute. No recording or transcript shall be made of the mediation proceedings. The costs of any mediation proceedings shall be shared equally by all parties. Any costs of legal representation shall be borne by the hiring party.
THE REMEDIES SET FORTH IN SECTION 15(a) SHALL BE THE CLIENT’S SOLE AND EXCLUSIVE REMEDY AND THE FIRM’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 15(a).
Disclaimer of Warranties. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 15(a) ABOVE, THE FIRM MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
Limitation of Liability.
IN NO EVENT SHALL THE FIRM BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE FIRM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT SHALL THE FIRM’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO THE FIRM PURSUANT TO THE APPLICABLE ENGAGEMENT LETTER.
NO PARTNER, PRINCIPAL, EMPLOYEE OR AGENT OF THE FIRM SHALL BE SUBJECTED TO ANY PERSONAL LIABILITY WHATSOEVER.
CLIENT AGREES TO INDEMNIFY, DEFEND, AND HOLD HARMLESS RVG AND ANY OF ITS PARTNERS, PRINCIPALS, SHAREHOLDERS, OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, AGENTS OR ASSIGNS WITH RESPECT TO ANY AND ALL CLAIMS MADE BY THIRD PARTIES ARISING FROM CLIENT’S ENGAGEMENT OF THE FIRM, REGARDLESS OF THE NATURE OF THE CLAIM.
Termination by The Firm. In addition to any remedies that may be provided under this Agreement, the Firm may terminate this Agreement with immediate effect upon written notice to Client, if Client:
fails to pay any amount when due under this Agreement;
has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part;
fails to respond to the Firm;
becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors; or
if the Firm, in its sole discretion believes a conflict of interest has arisen which affects the Firm’s ability to deliver the Services in accordance with the Firm’s ethical obligations or standards.
Termination by Client. In the event that Client terminates Services prior to the end of a specified term of engagement, the Firm may accelerate all remaining payments due over the term of the engagement and such remaining payments shall become due immediately. Client agrees to provide a minimum of thirty (30) days notice prior to any termination.
Waiver. No waiver by the Firm of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by the Firm. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
Force Majeure. No party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): ( acts of God; ( flood, fire, earthquake, Pandemic, or explosion; ( war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; ( government order, law, or action; ( embargoes or blockades in effect on or after the date of this Agreement; ( national or regional emergency; ( strikes, labor stoppages or slowdowns or other industrial disturbances; and ( telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.
Assignment. Client shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the Firm. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Client of any of its obligations under this Agreement.
Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
Referrals. In the course of providing services to you, you may request referrals to products or professionals such as attorneys, brokers, or investment advisors. We may identify professional(s) or product(s) for your consideration. However, you are responsible for evaluating, selecting, and retaining any professional or product and determining if the professional or product meets your needs. You agree that we will not oversee the activities of and have no responsibility for the work product of any professional or the suitability of any product we refer to you or that you separately retain. Further, we are not responsible for any services we perform that fail to meet the intended outcomes as a result of relying on the services of other professionals or products you may retain.
Brokerage or Investment Advisory Statements. If you provide our firm with copies of brokerage (or investment advisory) statements and/or read-only access to your accounts, we will use the information solely for the purpose described in the Engagement Objective and Scope section of the engagement letter. We will rely on the accuracy of the information provided in the statements and will not undertake any action to verify this information. We will not monitor transactions, investment activity, provide investment advice, or supervise the actions of the entity or individuals entering into transactions or investment activities on your behalf. We recommend that you receive and carefully review all statements upon receipt and direct any questions regarding account activity to your banker, broker or investment advisor.
Management Responsibilities. While the Firm can provide assistance and recommendations, you are responsible for management decisions and functions, and for designating an individual with suitable skill, knowledge or experience to oversee any services that the Firm provides. You are responsible for evaluating the adequacy and results of the services performed and accepting responsibility for such services. You are ultimately responsible for establishing and maintaining internal controls, including monitoring ongoing activities.
No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule (whether of the State of Florida or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Florida.
Submission to Jurisdiction. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Florida in each case located in the City of Fort Lauderdale and County of Broward, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice“) shall be in writing and addressed to the parties at the addresses set forth in the Engagement Letter or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or email. Except as otherwise provided in this Agreement, a Notice is effective only upon receipt of the receiving party or if by e-mail, upon sending.
Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Survival. Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Confidentiality, Governing Law, Submission to Jurisdiction, and Survival.
Electronic Agreements. An electronic acceptance of terms, electronic signature, or written agreement over e-mail shall each be deemed to have the same legal effect as delivery of an original signature.
Amendment and Modification. These Terms of Service may be amended or modified from time to time in the Firm’s sole discretion in accordance with law, ethical, or business requirements.
2020 RVG & Company