General Terms and Conditions for All Engagements
This Agreement will be effective on the Effective Date and will remain in effect for three years unless terminated as set forth herein. Thereafter, this Agreement will automatically renew for additional one-year terms unless terminated as set forth herein.
Statements of Work: Client hereby engages MCPA as an independent contractor to provide Services on a project- by-project basis to be set forth in executed Statements of Work or “SOW”. Only SOWs executed by the parties will be effective, and each SOW is a separate engagement. The parties agree that no third-party or organization is intended to rely on any Services rendered or Deliverables provided under this Agreement. Any work performed outside a SOW or not set forth on a SOW is included herein and will be billed at MCPA standard hourly rates.
If there is any inconsistency between a term in an SOW and this Agreement, the term in the SOW will control, except that the terms and provisions of the Sections titled Liability, and Third-Party Indemnification will control over any inconsistent terms in an SOW and nothing in an SOW will be deemed to change or supersede the terms and provisions of these Sections. Further, nothing in any SOW will be construed as modifying the responsibilities set forth in the Sections titled MCPA’s Responsibilities or Client’s Responsibilities unless such Section is specifically identified in the SOW.
Any changes that affect the Services set forth in an SOW will be documented and agreed upon in writing by the parties. Because a change could affect the cost, schedule or other terms of an SOW, the parties must approve each change in writing before implementing the change. All such additional services rendered outside of the scope of the SOW will be considered a scope change, and will result in additional fees billed to Client at standard hourly rates including other appropriate factors such as seasonality, time limitations and complexity. While a change is being reviewed and until the parties approve the change in writing, the parties will continue to proceed in accordance with the SOW then in effect. If Client requests that MCPA re-examine work previously performed, such re-examination will be Services separate from the previous SOW and will be performed under a separate SOW. MCPA may bill Client for up to 10% over the fixed fee range in the SOW without prior written approval. Any amount over this threshold will need to be approved by Client in advance. The terms and conditions of this Agreement and any applicable SOW and addenda shall govern any purchase orders submitted to MCPA by Client and override any different or additional terms on any Client purchase order form.
MCPA’s Responsibilities: MCPA will meet with the Client Representative and assist in developing the scope of Services to be rendered under an SOW. All Services and the scope of such Services will be approved by the Client Representative identified in the applicable SOW. Each SOW will establish the scope and frequency of the Services to be performed. MCPA will direct, supervise, and perform the day-to-day performance of the Services, and the Client Representative will be responsible for reviewing and approving the scope and the results of the Services, in accordance with any parameters included in the SOW. MCPA’s Services may include the concepts of selective sampling and testing. MCPA’s Services are not designed to detect fraud, errors, irregularities, malfeasance, or defalcation. MCPA’s Services do not guarantee that fraud, errors, irregularities, malfeasance, or defalcation will not occur and the Services will not be expected to, or relied upon, to detect fraud, errors, irregularities, malfeasance, or defalcation that may exist. MCPA’s Services will not address abuses of management discretion, including Client’s exercise or failure to exercise management discretion or business judgment.
Any information, advice, recommendations or other content of any Deliverable, other than Client’s original information, is for Client’s business use only, consistent with the purpose of the Services. Client may not rely on any draft Deliverable. MCPA will not be required to update any final Deliverable for circumstances of which we become aware or events occurring after delivery. Any advice provided by MCPA is not intended to be, and is not, investment advice. MCPA will provide to the Client Representative any periodic updates regarding Services in progress and any Deliverables as MCPA deems necessary or as requested by the Client Representative. Nothing contained in this Agreement will be construed as limiting, expanding, or otherwise modifying Client’s responsibility and authority for promptly reviewing the Services and Deliverables generated by MCPA, responding to and implementing the results of any Services performed by MCPA, and for ensuring that all necessary and proper action is taken in response to the Services rendered by MCPA. MCPA will not perform management functions, make any management or policy decisions, or act or appear to act in any capacity as a Client employee or manager. MCPA will not be asked to perform activities such as authorizing, executing, or consummating transactions or otherwise exercising authority on Client’s behalf.
As a regulated professional services firm, MCPA must follow professional standards, including the Code of Professional Conduct of the American Institute of Certified Public Accountants (“AICPA”). If circumstances arise that, in MCPA’s professional judgment, prevent it from completing the SOW, MCPA retains the right to take any course of action permitted by professional standards, including declining to express an opinion, issue other work product, or terminate the SOW.
Client’s Responsibilities: Client will designate a Client Representative knowledgeable in all laws, regulations, and industry practices applicable to the respective SOW. The Client Representative will determine and approve the risk, scope, and expected timeframe of Services to be performed, and the Client Representative will coordinate, review, and approve MCPA’s performance of Services. The Client Representative will be responsible for promptly evaluating the Deliverables or the results of the Services and for reporting any issues or deficiencies to MCPA and the appropriate level of the Client’s management. Client will be solely responsible for determining when, whether, and how any recommendations made by MCPA are to be implemented. Client represents that all information provided to MCPA in connection with this Agreement and each SOW is accurate and complete in all respects, contains no omissions, and will be updated on a prompt and continuous basis. Client represents that it has all rights and authority to permit MCPA to access or use any systems or third-party products during performance of Services. As between MCPA and Client, Client will be responsible for the accuracy and completeness of all documentation, projections, or any other information provided to MCPA relating to Services, Deliverables, or other work, and Client agrees that MCPA may rely upon any information provided to MCPA, whether provided by Client or by any other party, in connection with its Services, Deliverables, or other work, without independent investigation or verification.
Client will provide reasonable workspace for MCPA personnel at the project locations for the performance of Services, and Client will promptly make its personnel and representatives available for MCPA as needed for the Services. Client acknowledges that there are risks inherent in internet connectivity and that the actions of third-party service providers can impact and/or impede MCPA’s ability to perform the Services. Completion of MCPA’s work depends on appropriate and timely cooperation from Client’s personnel and, if applicable, Client’s third-party service providers and acquisition target personnel; complete, accurate, and timely responses to MCPA inquiries; and timely communication by Client of all matters that may materially affect the Services. If for any reason this does not occur, MCPA may expend additional time in performing the Services, resulting in increased fees, and Client will hold MCPA harmless against all matters that arise in whole or in part from any resulting delay. MCPA may periodically communicate changes in laws, rules, or regulations to Client. However, Client has not engaged MCPA to do so, and MCPA does not undertake an obligation to advise Client of changes in laws, rules, regulations, and industry or market conditions.
If MCPA is requested to testify or to provide records on behalf of Client, or compelled to testify or to provide records concerning any matter pertaining to Client or Client businesses, MCPA shall be compensated by Client for the time and effort involved at the standard hourly rates in effect at the time services are rendered. MCPA may assert any privilege applicable in connection with any such testimony or any such records and shall cooperate with Client to preserve any information that Client deems confidential in accordance with the law. If we deem it reasonable and necessary to consult with an attorney concerning such a matter, Client shall reimburse MCPA for any attorney fees or other expenses incurred. In the event that MCPA is or may be obligated to pay any cost, settlement, judgment, fine, penalty, or similar award or sanction as a result of a claim, investigation, or other proceeding instituted by any third party, and if such obligation is or may be a direct or indirect result of any inaccurate, incomplete, or misleading information that Client provided to MCPA during the course of this engagement (with or without Client’s knowledge or intent), Client agrees to indemnify MCPA, defend MCPA, and hold MCPA harmless as against such obligation. Client acknowledges that its indemnity obligations to MCPA shall be in accordance with the indemnity provision in paragraph 8 and shall satisfy the requirements of the express negligence rule and conspicuous requirement under Texas law.
Confidentiality: Each party acknowledges that it may disclose to the other confidential information with commercial value that is not publicly available (“Confidential Information”), including information about Client’s customers. The Receiving Party will hold Confidential Information in strict confidence, using at least a reasonable standard of care, and may disclose it only to agents, contractors, or subcontractors who agree to the same confidentiality obligations. Confidential Information will only be used for performing or utilizing the Services under this Agreement. Confidential Information does not include information that is publicly available, independently developed without reference to the Disclosing Party’s information, or lawfully obtained from a third party. The Receiving Party may disclose Confidential Information if required by law but must provide prior notice to the Disclosing Party to seek protective measures where possible. Confidentiality obligations apply to all information disclosed before, during, and after the Agreement’s Effective Date until the information enters the public domain or is no longer legally required to remain confidential.
Use of Subcontractors and Third-Party Providers: MCPA may engage third-party subcontractors in delivering Services to Client. Third-party providers used in the ordinary course of MCPA business operations include without limitation email providers, cyber-security providers, and data hosting centers. Third-party subcontractors are not owned or controlled by MCPA. If MCPA engages such a subcontractor to deliver Services to Client, MCPA will execute an agreement for the protection of Client’s confidential information consistent with the provisions of this Agreement. MCPA requires all 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, MCPA remains responsible for exercising reasonable care in providing such services, and any work product will be subjected to MCPA’s customary quality control procedures. By accepting the terms and conditions of this agreement, Client consents to the disclosure of confidential information to third-party service providers, if such disclosure is necessary to deliver professional services to Client or provide support services to MCPA. In certain circumstances, MCPA may require a separate written consent from Client before Client’s information is transmitted to a third-party, and a fee may apply. The limitations in this Agreement on Client’s remedies will also apply to any subcontractors.
Liability: MCPA will not be liable for any special, indirect, consequential, incidental, exemplary or punitive damages, or for any lost profits, lost savings, or lost business opportunity, even if MCPA had reason to be aware of the possibility of such damages. Except where it is judicially determined that MCPA acted with recklessness or willful misconduct, MCPA’s liability and any liability of its personnel will not exceed the fees actually paid to MCPA under the applicable SOW, and a return of fees paid will be the exclusive remedy for any damages. The limitations of liability in this Section on Liability and in this Agreement generally will apply to the fullest extent allowed by law and will apply to any claim, liability, or damages, including without limitation to any claims, liabilities, or damages based in negligence or other tort, contract, warranty, indemnity, fiduciary principles, statute or common law. This provision will survive termination of this Agreement, in whole or in part.
Third-Party Indemnification: Except where it is judicially determined that MCPA acted with gross negligence or willful misconduct, Client will indemnify and hold harmless MCPA, its personnel, and its subcontractors against all costs, fees, expenses, damages, and liabilities, including without limitation attorney fees, defense costs and legal fees, associated with a third-party claim arising from or relating to any services or work provided under this Agreement. This indemnification will apply to the fullest extent allowed by law and will apply to any claim, liability, or damages including, without limitation, claims, liabilities, or damages based in negligence or other tort, contract, warranty, fiduciary principles, statute or common law. This provision will survive termination of this Agreement, in whole or in part. Client agrees that any indemnity arising under this Agreement shall apply without regard to the negligence, strict liability, or other fault of MCPA or other Indemnified Party, whether active, passive, joint, concurrent, comparative, contributory or sole, or any preexisting condition, any breach of contract or breach of warranty, or violation of any legal requirement. This provision is specifically bargained for allocation of risk between MCPA and Client, with the Client agrees and acknowledges satisfies the express negligence rule and conspicuous requirement under Texas law.
Independent Contractor Relationship: The parties are and will be independent contractors to one another, and nothing herein will be deemed to cause this Agreement to create an agency, partnership, or joint venture between the parties. Nothing in this Agreement will be interpreted or construed as creating or establishing the relationship of employer and employee between Client and either MCPA or any employee, agent, or subcontractor of MCPA. MCPA will bear sole responsibility for payment of compensation to its employees and subcontractors. MCPA will report for all of its employees performing Services under this Agreement, federal and state income tax withholding, social security taxes, and unemployment insurance applicable to such employees. MCPA will bear sole responsibility for health or disability insurance, retirement benefits, or other welfare or pension benefits, if any, to which such employees may be entitled and will require any of its subcontractors to have the same responsibilities.
Fees and Payment: As set forth in the applicable SOW, Client will pay MCPA’s fees for Services, at the rates identified in the SOW, on either (i) a fixed fee/range or (ii) a time and materials basis. MCPA will submit to Client invoices for the Services performed under each SOW and for actual reimbursable expenses incurred. Invoices are typically prepared on a bi-monthly basis. All amounts contained in invoices will be paid by Client, and invoices are due upon receipt, unless a payment plan has been established. Client will pay a finance charge equal to the lesser of 1% per month, or the amount permitted by law, on the balance not received by MCPA within thirty (30) days of the date of an invoice. In the event that any collection action is required to collect unpaid balances due, Client agrees to reimburse MCPA for the costs of collection, including attorney fees. Client will read all invoices carefully and shall promptly notify MCPA in writing of any claimed errors or discrepancies in billing within fifteen (15) days from the date the invoice is received. If Client fails to notify MCPA within this time frame, it will be presumed that the services reflected in the invoice, as well as any expenses or out-of-pocket costs, were reasonable and necessary and the amount billed is accurate, fair and reasonable in the event of any future dispute. Prior to commencing services, MCPA may require Client to provide a retainer. The retainer will be applied against the final invoice, and any unused portion will be returned to Client upon the collection of all outstanding fees and costs related to the SOW.
Any fee estimates in an SOW assume that personnel of Client will cooperate with and assist MCPA in gathering accurate and complete information necessary to perform the Services, including obtaining supporting documents, pulling relevant data, following up on exceptions, and in other similar ways. Fees are also based upon the assumption that no irregularities will be discovered, no non-standard procedures requiring additional expenditure of time or expense will be required, internal controls of the oversight and administration of the Services being provided are reasonably adequate, and there will be no substantial changes in the nature of the Services to be provided. The Services provided to Client under this Agreement represent a significant commitment of MCPA resources. If Client terminates an SOW without cause prior to the completion of the SOW without providing MCPA with prior written notice as set forth in Paragraph 11(b), Client will pay MCPA for all time expended on the SOW, and for all out-of-pocket costs, through the date of termination. Such termination fee is a reasonable approximation of the investment MCPA makes in beginning work under an SOW and is not a penalty. MCPA will not be required to deliver any Deliverables or continue Services until all outstanding amounts are paid. If any portion of any invoice remains unpaid after thirty (30) days, MCPA in its sole discretion may cease performance of Services until outstanding amounts are paid, or may choose to withdraw from the engagement. Client hereby agrees to indemnify, defend and hold MCPA harmless from and against all claims or damages arising out of MCPA’s discontinuation of Services as a result of Client’s failure to pay outstanding amounts in accordance with this Section.
Lower, off-peak rates may apply in the summer and winter. There is no definite start or end date of this season. It is wholly dependent upon the level of work that MCPA has. One of the ways Client can be sure to receive off-peak rates is to provide all information requested to MCPA several months in advance of any required deadline. Fees for MCPA services are based in part upon the amount of time required at our standard billing rates for the personnel working on the engagement, plus out-of-pocket expenses. MCPA charges also may include other appropriate factors, including the difficulty of the assignment, the degree of risk and responsibility the work entails, time limitations imposed on MCPA by others, seasonality, the experience and professional expertise of the personnel assigned, and the priority and importance of the work to Client. Client agrees to reimburse MCPA for any of our out-of-pocket costs incurred in connection with the performance of services.
Termination: Either party may terminate this Agreement and discontinue Services at any time (including prior to completion of an SOW) for any reason, including convenience, upon sixty (60) days written notice to the other party. Further, the parties may mutually agree to terminate an SOW or this Agreement at any time for any reason. The termination of an SOW by either party without termination of the entire Agreement will not affect the other terms of this Agreement. MCPA may terminate this Agreement at any time for any reason consistent with applicable professional standards as determined by MCPA. At Client’s request and to the extent consistent with applicable professional standards, MCPA will assist Client, billed at MCPA standard hourly rates, in winding up any Services and/or in transitioning any Services to a new provider. MCPA will invoice Client for such amounts on a bi-monthly basis, and Client will pay all such amounts upon receipt of MCPA’s invoice.
If services are terminated due to nonpayment, or for any other reason provided for in this agreement, the engagement will be deemed to have been completed upon written notification of termination, even if the project has not been completed. Client will be obligated to compensate MCPA for all time expended, and to reimburse MCPA or all out-of-pocket costs, through the date of termination. If Client elects to terminate services for any reason, the engagement will be deemed to have been completed upon written notification of termination, even if the project has not been completed. Client will be obligated to compensate MCPA for all time expended, and to reimburse MCPA for all out-of-pocket costs, through the date of termination.
Either party may terminate this Agreement immediately without notice if the other files for bankruptcy protection or has an involuntary petition for bankruptcy filed against it, becomes unable to pay its bills, sells or transfers property to creditors, is forced into receivership, has a liquidator or receiver appointed by the court, or is a part of any other similar legal proceeding, provided that termination is permitted by law. MCPA will have no obligation to perform services in connection with bankruptcy proceedings. Termination of the entire Agreement will terminate all SOWs unless the parties agree in writing.
Ownership: Except as set forth in the applicable SOW, any Deliverables, Works, Inventions, working papers, or other work product conceived, made or created by MCPA in rendering the Services under this Agreement (“Work Product”), and all intellectual property rights in such Work Product will be owned exclusively by MCPA. Upon full payment by Client, MCPA grants to Client a license to use for its business purposes any Deliverables, including any other Work Product incorporated in such Deliverables. Further, MCPA provides the same or similar services to other clients; therefore, Client agrees (a) that nothing in this Agreement shall preclude MCPA from developing for itself, having developed, or developing for others, anything that is similar or competitive with the Deliverables, irrespective of the similarity to the Deliverables, and (b) MCPA retains exclusive ownership or control of all intellectual property rights in any ideas, concepts, methodologies, data, software, designs, utilities, tools, models, techniques, systems, reports, or other know-how that it develops, owns or licenses in connection with this Agreement (“Materials”). The foregoing ownership will be without any duty of accounting.
Data Usage and Aggregations: Client hereby acknowledges and agrees that MCPA may, in its discretion, use any Client information or data provided to MCPA to improve MCPA services and Materials, including without limitation developing new MCPA services and software or other products. Client also agrees that MCPA may, in its discretion, aggregate Client content and data with content and data from other clients, other sources, or third parties (“Data Aggregations”) for purposes including, without limitation, product and service development, commercialization, industry benchmarking, or quality improvement initiatives. Prior to, and as a precondition for, disclosing Data Aggregations to other MCPA customers or prospects, MCPA will anonymize any Client data or information in a manner sufficient to prevent such other customer or prospect from identifying Client or individuals who are Client customers. All Data Aggregations will be the sole and exclusive property of MCPA.
Software Usage: If in connection with the Services described in this Agreement, MCPA needs to use software that requires separate licensing, separate software licensing and maintenance and support agreements will be provided and must be executed before MCPA begins work. If Client wishes to directly or indirectly license software supplied by MCPA, separate software licensing agreements, end user license, service level, and/or professional services agreements and other applicable agreements will be provided and must be executed prior to the implementation of the software. For clarification, in no event will this Agreement or any SOW issued hereunder grant a license in any software or govern the terms and conditions under which a license is granted. The licensure of software will be strictly governed by separate applicable software license agreements.
MCPA is engaged to host Client software on MCPA servers, such as Quickbooks, that the Client has access to, Client is responsible for maintaining security and shall ensure commercially reasonable anti-virus software, intrusion detection software and/or spyware detection software that prohibit the unauthorized access by any non-authorized user to MCPA’s network and electronic equipment. Client shall take all commercially reasonable efforts to protect all MCPA Information and Data from malicious activities and assaults on Clients computing resources and network-accessible information. Client shall ensure that such security measures are regularly reviewed and revised to address evolving threats and vulnerabilities. Client shall give immediate notice to MCPA of any breach of data or attack that may reasonably be assumed to cause harm to MCPA. Upon receipt of a notification of a data breach or attack, MCPA may in its sole discretion suspend access to MCPA servers. Client shall be responsible for any damages to MCPA servers, equipment, due to the Client’s negligence or failure to ensure Client had commercially reasonable firewall equipment and anti-virus software, intrusion detection software and/or spyware detection software.
Security Testing Risk: Client acknowledges and agrees that any Services provided under this Agreement that relate to penetration or security testing of information systems carry inherent risk, including risk of breach of security, breach of confidentiality, and system crashes with resulting damage and, by requesting MCPA to provide such services, Client assumes full responsibility for such risks. Client shall be solely responsible for maintaining up to date and working backup copies of all its original software and data.
Publicity, Publication, and Announcements: Neither MCPA nor Client will advertise or publish the terms of this Agreement without prior written consent, except as required by law or for disclosures to professional advisors. Client will not distribute MCPA’s Deliverables or use MCPA’s name or reports in published documents without MCPA’s prior written consent, which includes submitting drafts for approval before filing or publication. MCPA may create marketing content describing its Services to Client, subject to Client’s consent to use their name, but without such consent, MCPA will only list Client as a client served.
Consumer Privacy: In order to provide the Services in a particular SOW, Client may be disclosing to MCPA certain nonpublic personal information regarding its accounts, customers, and consumers. To the extent permitted by applicable law, MCPA will not disclose any such nonpublic personal information, except to Client and MCPA’s employees and agents. However, in circumstances that fall under an exception in the regulations “Privacy of Consumer Financial Information” implementing the Gramm-Leach-Bliley Act, or other exceptions permitted by applicable law, MCPA may disclose or use such nonpublic personal information in the ordinary course of business to carry out the Services. MCPA has implemented and will maintain physical, electronic and procedural safeguards (“Safeguards”) reasonably designed to protect the security, confidentiality and integrity of, to prevent unauthorized access to or use of, and to provide for the proper disposal of nonpublic personal information regarding Client’s customers or consumers.
Data Protection: If MCPA holds or uses Client information linked to individuals who are Client’s customers (“Personal Data”), it will treat it as confidential, comply with applicable U.S. laws and regulations, and follow professional standards, including those for financial institutions. As a service provider under the California Consumer Privacy Act, MCPA processes information on behalf of the Client while maintaining independence for attest services. MCPA will not sell Personal Data or use it beyond performing the Services, detecting security incidents, improving products, or complying with laws. Safeguards are in place to protect, prevent unauthorized access to, and dispose of Personal Data securely.
Client warrants it has authority to provide Personal Data, has complied with applicable law, and will limit Personal Data shared to what is necessary. If Restricted Personal Data (e.g., protected health information, Social Security numbers) is involved, Client and MCPA will agree on measures to protect it, such as encryption or masking, and provide it only as needed. Both parties will allow opportunistic TLS encryption for secure email communication and agree that using unencrypted media, if necessary, does not breach confidentiality. MCPA will assist Client with compliance requests from consumers, authorities, or other obligations, with Client reimbursing costs incurred. Client must promptly notify MCPA of any required actions. After completing Services, MCPA will delete or anonymize Personal Data unless law or professional standards require retention. If using third-party providers, MCPA will ensure similar data protection terms apply. Both parties will cooperate in investigating security issues or breaches.
Client Portals: MCPA utilizes secure portals for real-time collaboration across geographic boundaries and time zones and allows MCPA and Client to share data, engagement information, knowledge, and deliverables in a protected environment. In order to use a secure portal, Client may be required by the provider(s) to execute a client portal agreement and agree to be bound by the terms, conditions and limitations of such agreement. Client agrees that MCPA has no responsibility for the activities of the portal providers and agrees to indemnify and hold us harmless with respect to any and all claims arising from Client misuse of a portal. MCPA is not responsible for maintaining a copy of Client’s information. MCPA does not provide back-up services for any Client data or records, including information MCPA provides to Client. Portals are utilized solely as a method of transferring data and are not intended for the storage of Client information. Information on a portal may be deleted at any time by MCPA. Client agrees that any electronic data provided to MCPA is accurate as of the date and time Client uploaded such information. MCPA retains the right to limit and deny use of the portal for inappropriate purposes. Access to such portals will terminate no later than 30 days after the termination of services under this agreement. Deliverables and other work may be uploaded by MCPA to Client portals for Client to download, print, or save. Client may print deliverables from Client portals. If Client needs paper copies printed, a standard fee may apply. If Client transmits confidential information to MCPA in a manner other than a secure portal, Client accepts responsibility for any and all unauthorized access to confidential information. If Client requests that MCPA transmits confidential information in a manner other than a secure portal used by MCPA, Client agrees that MCPA is 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 MCPA 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.
Client-Required Cloud Usage: If Client requests that MCPA access files, documents or other information in a cloud-based or web-accessed hosting service or other third-party system accessed via the internet, including, without limitation iCloud, Dropbox, Google Docs, Google Drive, a data room hosted by a third-party, or a similar service or website (collectively, “Cloud Storage”), Client will confirm with any third-parties assisting with or hosting the Cloud Storage that either such third-party or Client (and not MCPA) is responsible for complying with all applicable laws relating to the Cloud Storage and any information contained in the Cloud Storage, providing MCPA access to the information in the Cloud Storage, and protecting the information in the Cloud Storage from any unauthorized access, including without limitation unauthorized access to the information when in transit to or from the Cloud Storage. Client represents that it has authority to provide MCPA access to information in the Cloud Storage and that providing MCPA with such access complies with all applicable laws, regulations, and duties owed to third-parties.
Tax Returns
Client Responsibilities: Client is responsible for providing all information required for the preparation of complete and accurate tax returns and other work. MCPA must receive sufficient information from which to prepare Client work or tax returns within a reasonable period of time prior to the applicable due date or filing deadline. If Client information is not received in a timely manner, tax returns or projects may be late. If available, MCPA may pursue an extension of the due date of Client returns or other work. Client may be subject to late filing fines and other penalties and consequences if substantial Client information is not received in a timely manner. MCPA is under no duty to review the information the Client provides to determine whether there are any tax filing obligations with another state or taxing jurisdiction. If MCPA becomes aware of any other filing requirement(s), we will notify Client of the obligation and may prepare the appropriate tax returns or other work at Client’s request as a separate engagement. MCPA has the right to terminate, at our discretion, if Client does not provide information that is requested in a timely manner, refuses to cooperate with our reasonable requests or misrepresents any facts. This withdrawal will release MCPA from any obligation to complete tax return(s) or other work and will constitute completion of the engagement. Client agrees to compensate MCPA for time and out-of-pocket expenses through the date of the withdrawal.
Client is responsible for making all management decisions and performing all management functions; for adopting sound accounting policies; for maintaining an adequate and efficient accounting system, for safeguarding assets, for authorizing transactions, for retaining supporting documentation for those transactions, and for devising a system of internal controls that will, among other things, help assure the preparation of proper income tax returns; for designating an individual with suitable skill, knowledge, or experience to oversee the services we provide; and for evaluating the adequacy and results of the services performed and accepting responsibility for such services. Client has final responsibility for all tax return(s) and related bookkeeping, books and records, and other financial records and reports, therefore, Client or other appropriate officials/managers should review the return(s), bookkeeping and other reports carefully before they are signed or used, and before giving MCPA permission to electronically file tax returns or other work on Client’s behalf. Client should retain all documents that form the basis of income and deductions for tax returns, books and records, and other financial reports. These may be necessary to prove the accuracy and completeness of the returns to a taxing authority or other auditor or examiner.
The law provides various penalties and interest that may be imposed when taxpayers underestimate or fail to pay tax liabilities or fail to disclose required information. Client acknowledges that any such underestimate or failure to pay a tax liability or failure to disclose required information and any imposed interest and penalties, are Client’s responsibility, and that MCPA has no responsibility in that regard.
MCPA Responsibilities: MCPA will not audit or otherwise verify the data or information that Client submits for tax return preparation. Therefore, MCPA Deliverables cannot be relied upon to disclose errors, fraud, or other illegal acts that may exist. However, MCPA will inform Client of any material errors or fraud that may be discovered as a result of preparation of Deliverables. Furthermore, the risk of not detecting a material misstatement resulting from fraud is higher than for one resulting from error, as fraud may involve collusion, forgery, intentional omissions, misrepresentations, or the override of internal controls. MCPA services are not designed to detect and/or prevent fraud from occurring. MCPA responsibilities as tax preparers is limited to the tax or accounting period specified in the Statement of Work and does not extend to any later periods of which MCPA is not engaged.
MCPA services are not designed to provide assurance on internal controls or to identify reportable conditions, that is, significant deficiencies or material weaknesses in the design or operation of internal control. Accordingly, MCPA has no responsibility to identify and communicate significant deficiencies or material weaknesses in Client internal controls as part of this agreement, and MCPA cannot be relied upon to disclose the same. However, during the procedures, if MCPA becomes aware of such reportable conditions, those conditions will be communicated to Client.
If information is discovered that affects prior-year tax returns or other work, MCPA will make Client aware of the facts. However, MCPA cannot be responsible for identifying all items that may affect prior-year returns or other projects. If Client becomes aware of such prior period information, Client should contact MCPA to discuss the best resolution of the issue. MCPA can assist with preparing appropriate amended returns or other projects as a separate engagement.
MCPA may encounter instances where the tax law is unclear, or where there may be conflicts between the taxing authorities’ interpretations of the law and other supportable positions. In those instances, MCPA will outline for you each of the reasonable alternative courses of action, including the risks and consequences of each such alternative. In the end, MCPA will adopt, on your behalf, the alternative which Client selects after having considered the information provided. Client agrees to honor MCPA’s decisions regarding disclosure of return positions to avoid or mitigate penalties. MCPA is not responsible for tax returns or other work not listed in a Statement of Work.
Foreign Accounts: Client has the final responsibility for compliance with respect to foreign bank account reporting information returns and foreign financial assets reporting. Client also has the final responsibility for reporting foreign business operations in which Client owns an interest and/or business operations conducted on behalf of a foreign owner or foreign related party. You represent that the information you are supplying to us is accurate and complete to the best of your knowledge and that you have disclosed to us all relevant facts affecting your tax returns. MCPA will not verify the information provided by Client; however, MCPA may ask for additional clarification of information.
Tax Planning: Although MCPA may orally or electronically discuss tax planning issues with Client from time to time, such discussions will not constitute advice upon which MCPA intends for Client to rely for any purpose. Rather, any advice upon which MCPA intends for Client to rely, and upon which Client will rely, will be embodied in a formal written report from MCPA to Client, and any such writing will supersede any prior general tax information or prior oral representations between the parties on the issue.
Joint Returns: In the case of joint tax returns, each person on the joint return is considered a client. As such, Client(s) acknowledges that there is no expectation of privacy concerning our services, and MCPA is at liberty to share with each individual, without the prior consent of the other, any and all documents pertaining to the engagement and filings. Any request for documents or other information should be communicated to MCPA in written form. Client(s) also acknowledges that unless MCPA is notified otherwise in advance and in writing, MCPA may construe an instruction from either of the Clients on a joint return, to be an instruction on your joint behalf.
Reportable Transactions: In connections with income tax preparation, penalties of as much as $100,000 can be imposed on Client for failing to disclose participation in “reportable transactions,” that is, certain arrangements the IRS has identified as potentially abusive. If MCPA becomes aware of any such transactions, MCPA will insist that all such transactions be properly disclosed. The law also imposes penalties on taxpayers who understate their tax liability. Without disclosure in the return itself of the specific position taken on a given issue, MCPA must have a reasonable belief that it is more likely than not that the position will be held to be the correct position upon examination by taxing authorities. If MCPA does not have that reasonable belief, they must be satisfied that there is at least a reasonable basis for the position, and in such a case the position must be formally disclosed which form would be filed as part of the return. If we do not believe there is a reasonable basis for the position, either the position cannot be taken or we cannot sign the return. In order for us to make these determinations, we must rely on the accuracy and completeness of the relevant information you provide to us, and, in the event we and/or you are assessed penalties due to MCPA reliance on inaccurate, incomplete, or misleading information you supplied to us (with or without your knowledge or intent), you will indemnify us, defend us and hold us harmless as to those penalties. Certain tax positions or strategies, while not currently identified as a reportable transaction by the IRS, may ultimately be determined to be so in the future. Consequently, you agree to advise us of any transaction you enter into that entitles you to disproportionate tax benefits (deductions, credits, or refunds), that generates significant income deferral or non-recognition, or that generates significant tax losses without corresponding cash impacts (“aggressive tax strategy”). If you fail to timely notify us, in writing, of any aggressive tax strategy you have entered into, you will be responsible for any liability, including but not limited to, additional tax, penalties, interest and related professional fees.
IRS Audits: Client tax return(s) may be selected for review by the taxing authorities. In the event of an audit, Client may be requested to produce documents, records, or other evidence to substantiate the items of income and deduction shown on tax returns. Any proposed adjustments by the examining agent are subject to certain rights of appeal. In the event of a tax examination, MCPA will be available, upon request, to represent Client. However, such additional services are not included in the fees for the preparation of the tax return(s). Such representation will be a separate engagement letter or Statement of Work from return preparation and will be provided to document the arrangement including terms for payment of fees and expenses incurred.
Certain communications involving tax advice may be privileged and not subject to disclosure to the IRS. By disclosing the contents of those communications to anyone, or by turning over information about those communications to the government, you (or other employees) may be waiving this privilege. To protect this right to privileged communication, please consult with MCPA or Client’s attorney prior to disclosing any information about MCPA’s tax advice.
No Fiduciary Duties: This Agreement is not intended to, and does not, create, impose or imply any fiduciary duty on MCPA, its partners, officers, employees, agents, or its affiliates with respect to any matter under or in connection with this Agreement, any SOW or the provision of Services. For clarification, MCPA is not a fiduciary to Client with respect to the negotiation, preparation or execution of this Agreement, and MCPA will not have or be subject to any liability to Client or any other person resulting from the distribution to Client, or Client’s use of, any information pursuant to this Agreement.
Response to Legal Process: If MCPA is requested by Client, any third-party, or any other person or entity, by subpoena, investigation, other legal process, or other request to produce documents or testimony pertaining to Client or the Services, and MCPA is not named as a party in the proceeding, Client will pay MCPA for its professional time billed at MCPA standard hourly rates, plus out of pocket expenses, costs, and fees, as well as reasonable attorney fees, incurred in responding to such request. In the event MCPA is obligated to pay any cost, settlement, judgement, fine penalty, or similar award or sanction as a result of a claim, investigation, or other proceeding instituted by any third party, and if such obligation is or may be a direct or indirect result of any inaccurate, incomplete, or misleading information that Client provided to MCPA during the course of any engagement (with or without Client’s knowledge or intent), Client agrees to indemnify, defend and hold MCPA harmless from and against such obligation.
Legal and Regulatory Change: The scope of Services to be rendered hereunder is based on current laws and regulations. If changes in laws or regulations change Client’s requirements or the scope of MCPA’s Services, the parties agree to work in good faith to amend the affected SOW(s), provided that if an agreement on amendment cannot be reached within a reasonable time, the parties may terminate the affected SOW without penalty. In the event that applicable laws or regulations change during the course or after Services are rendered, MCPA will not be liable for any claim, damages, fine or penalty arising out of such change
Legal Advice: No service herein anticipated or provided shall be deemed nor intended to be legal advice. No part of any fee paid by Client to MCPA shall in any way be considered compensation for legal services. No advice or suggestions offered, by way of anecdotal or personal experience in any situation is meant to substitute for advice from counsel. This does not preclude Client from appointing MCPA as a representative of Client in legal proceedings, including but not limited to arbitration, mediation, small claims actions or expert witness testimony for which Client may compensate MCPA.
Force Majeure: Except for payment obligations, neither party will be liable under this Agreement for any failure, or delay in performance, of its obligations hereunder, if performance is delayed or prevented by acts of God; fire; explosion; war; terrorism; earthquakes; riots; curtailment of air transportation; governmental laws, orders, or regulations; an epidemic; pandemic; public health- related orders or alerts issued by the US Centers for Disease Control, the World Health Organization, any governmental entity, any quasi-governmental entity, or similar authority (including, without limitation, “stay-at home” or “shelter-in-place” orders); or other causes beyond such party’s control (each, a “Force Majeure Event”). The party whose performance is affected by such Force Majeure Event (“Impacted Party”) shall provide the other party (“Other Party”) prompt notice of such Force Majeure Event. During the pendency of any Force Majeure Event, the Impacted Party will work to cure the Force Majeure Event if or to the extent commercially reasonable. However, if the Force Majeure Event continues for thirty (30) consecutive days, the Other Party may terminate this Agreement immediately without penalty to either party or discuss in good faith with the Impacted Party an extension of the time of performance as necessary to enable the Impacted Party to perform.
Dispute Resolution & Governing Laws: If a dispute arises, in whole or in part, out of or related to this engagement, or after the date of this agreement, between Client or any of Client’s affiliates or principals and MCPA, and if the dispute cannot be settled through negotiation, Client and MCPA agree first to try, in good faith, to settle the dispute by mediation administered by the American Arbitration Association, under its mediation rules for professional accounting and related services disputes, before resorting to litigation or any other dispute-resolution procedure. The results of mediation will be binding only upon agreement of each party to be bound. Costs of any mediation will be shared equally by both parties. Any mediation will be held in Dallas County, Texas. Subject to the section on Arbitration, all court actions or proceedings arising from or relating to this Agreement will be tried and litigated exclusively in the state and federal courts located in Dallas County, Texas, and each party hereby consents to personal jurisdiction in such courts. This choice of venue is intended to be mandatory and is not permissive in nature. Each party waives any right it may have to assert the doctrine of forum non conveniens or similar argument, and each party waives any objection to venue. Each party stipulates that the state and federal courts in Dallas County, Texas, will have personal jurisdiction and venue over each of them for the purpose of litigating any dispute, controversy, or proceeding arising out of or related to this Agreement. This Agreement, including any dispute arising out of or related to this Agreement, will be governed and construed in accordance with the laws of the State of Texas applicable to agreements made and wholly performed in that state, without giving effect to its conflicts of laws rules to the extent those rules would require applying another jurisdiction’s laws. No action against MCPA arising from or relating the Services, a specific SOW, or this Agreement generally, may be brought after the earlier of (a) two (2) years after the date on which occurred the act or omission alleged to have been the cause of the injury alleged; or (b) the expiration of the applicable statute of limitations or repose.
JURY TRIAL WAIVER: FOR ALL DISPUTES RELATING TO OR ARISING BETWEEN THE PARTIES, THE PARTIES AGREE TO WAIVE A TRIAL BY JURY TO FACILITATE JUDICIAL RESOLUTION AND TO SAVE TIME AND EXPENSE. EACH PARTY AGREES IT HAS HAD THE OPPORTUNITY TO HAVE ITS LEGAL COUNSEL REVIEW THIS WAIVER. THIS WAIVER IS IRREVOCABLE, MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND APPLIES TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, OR MODIFICATIONS TO THIS AGREEMENT. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS WRITTEN CONSENT TO A BENCH TRIAL WITHOUT A JURY. HOWEVER, AND NOTWITHSTANDING THE FOREGOING, IF ANY COURT RULES OR FINDS THIS JURY TRIAL WAIVER TO BE UNENFORCEABLE AND INEFFECTIVE IN WAIVING A JURY, THEN ANY DISPUTE RELATING TO OR ARISING FROM THIS ENGAGEMENT OR THE PARTIES’ RELATIONSHIP GENERALLY WILL BE RESOLVED BY ARBITRATION AS SET FORTH IN THE PARAGRAPH BELOW REGARDING “ARBITRATION.”
Arbitration: If any court rules or finds that the JURY TRIAL WAIVER section is not enforceable, then any dispute, controversy or claim arising out of, relating to, or having any connection with this Agreement or the parties’ relationship generally, or the breach, termination, enforcement, interpretation or validity of this Agreement, including without limitation the determination of the scope or applicability of this agreement to arbitrate, will be determined by binding and confidential arbitration in Irving, Texas, unless the parties agree in writing on a different location. Regardless of the amount in controversy, the arbitration will be administered by JAMS, Inc., pursuant to its Streamlined Arbitration Rules & Procedures. In the event of a conflict between such rules and this Agreement, this Agreement will control. The parties will agree within a reasonable period of time after notice is made of instituting the arbitration process whether to use one or three arbitrators, and if the parties cannot agree within fifteen (15) business days, the parties will use a single arbitrator. If the parties cannot agree upon arbitrator(s) within an additional fifteen (15) business days, the arbitrator(s) will be selected by JAMS. However, no arbitrator may be appointed unless and until he/she has agreed to these procedures. The arbitrator(s) must be a retired judge or an attorney with at least 15 years of experience in the field of commercial litigation. The arbitrator(s) will apply substantive law and may award injunctive relief or any other remedy available from a judge. The arbitrator(s) may authorize only limited discovery upon a showing of substantial need by the party seeking discovery. No forensic examination of respondent’s electronic records will be permitted in any arbitration. All aspects of the arbitration will be treated by the parties and the arbitrator as confidential. If it is the prevailing party on any issue or claim in the arbitration, the respondent will be awarded its reasonable attorney’s fees and arbitration costs by the arbitrator(s). Otherwise, the parties will share the costs of arbitration equally. In no event will claimant be awarded its attorney’s fees or arbitration costs. The final award must be delivered by the arbitrator(s) within one year of the initial demand (or less) absent written agreement by the parties to the contrary. None of the time limits in this Section are jurisdictional. Any award will be accompanied by a reasoned opinion describing the basis of the award. The arbitration will be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq., and judgment upon the award rendered by the arbitrator(s) may be entered by any court having jurisdiction thereof.
Non-Solicitation of MCPA Employees: Because of the extensive training and knowledge MCPA staff have developed, their separation would be a tremendous resource loss to MCPA. If any MCPA employee, who participates in work for Client, is hired by Client for any position during the SOW or within one year after the end of the SOW, MCPA will invoice Client for a placement fee of 40% of starting salary. The placement fee will be due and payable on the starting date of the employee.
Acceptance: This agreement is contractual in nature and includes all of the relevant terms that will govern the relationship for which it has been prepared. The terms of this agreement supersede any prior oral or written representations or commitments by or between the parties. Any material changes or additions to the terms set forth in this letter will only become effective if evidenced by a written amendment to this letter, signed by all of the parties. If any part of this Agreement is found to be illegal, invalid, or unenforceable, the rest will remain effective as long as it does not materially affect the parties’ rights or intentions. No provision will be waived unless in writing and signed, and a waiver of one breach will not waive future breaches or other provisions. Both parties should retain a copy of this fully executed agreement for their records. Client acknowledges and agrees that (a) there are no representations or warranties other than those expressly set forth in this Agreement; and (b) it has not relied and will not rely upon any duty of disclosure or any document, written information, or oral information, except as reduced to writing and made a term of this Agreement If MCPA does not receive the original of this letter or electronic equivalent, and the Statement of Work, in fully executed manual or electronic form, but receives from Client information and documentation necessary to prepare Client’s tax return or other work, then such receipt by MCPA shall be deemed to evidence Client’s acceptance of all of the terms set forth above and in the Statement of Work. Furthermore, if MCPA does not receive from Client the original of this agreement or electronic equivalent and the Statement of Work, in fully executed manual or electronic form, but Client executes the tax return filing documents or uses the work provided by MCPA, then such execution or use shall be deemed to further evidence Client acceptance of all the terms set forth above.
