These Terms and Conditions (these “Terms”) are a legally binding contract between Breakwater Accounting & Advisory Group, LLC, a Delaware limited liability company (“Breakwater”) and the individual, company, entity, or organization (“Customer”) identified in the proposal, order, statement of work, or similar document incorporating these Terms (the “Scope of Services”). These Terms and the Scope of Services are referred to collectively as the “Agreement”. This Agreement shall become effective on the date provided on the Scope of Services (the “Effective Date”).
Breakwater and Customer agree as follows:
- 1.1 Scope of Services. Breakwater will perform the bookkeeping and accounting services described in the Scope of Services on the terms set forth in this Agreement (the “Services”)
- 1.2 Customer Assistance. Customer shall provide Breakwater with such resources, information and assistance as Breakwater may reasonably request in connection with Breakwater’s performance of the Services. It is the Customer’s responsibility to provide all the information required to perform the Services. Breakwater will prepare financial statements based upon information that Customer has provided. Customer represents that the information supplied is accurate and complete to the best of Customer’s knowledge. No assurance is provided on the financial statements. Breakwater shall have no liability for (a) deficiencies or delays in the Services resulting from the acts or omissions of Customer, its agents or employees or (b) performance of the Services in accordance with Customer’s instructions.
- 1.3 No Conflict of Interest; Non-Exclusive Engagement. Breakwater warrants that, to the best of Breakwater’s knowledge, Breakwater is not party to any contract or subject to any duty that conflicts with or is inconsistent with this Agreement (“Conflicting Business”). Breakwater shall have the right to provide to any third parties products and services similar to the Services to be provided to Customer on such terms and conditions as Breakwater may determine in its sole discretion, provided that such services are not Conflicting Business. Nothing in this Agreement prohibits Breakwater from utilizing any skills or knowledge of a general nature gained or created by Breakwater during the course of providing the Services, including, information publicly known or available or that could reasonably be acquired in similar work performed for another customer of Breakwater, subject to Section 6.
2.RELATIONSHIP OF THE PARTIES. The parties acknowledge that Breakwater is an independent contractor of Customer, and its employees or subcontractors are not employees of Customer. Nothing in this Agreement will be construed as creating a partnership, joint venture, or agency relationship between the parties, or as authorizing either party to act as an agent for the other or to enter contracts on behalf of the other. Nothing in this Agreement is intended to confer any rights or remedies on any other person or entity, which is not a party to this Agreement.
3.FEES AND PAYMENT. Customer shall pay Breakwater all fees, costs, and expenses (“Service Fees”) set forth in the Scope of Services. The Scope of Services will set forth the amounts due and the method in which payment must be made. All payments must be made in U.S. dollars unless stated otherwise in the Scope of Services. Penalties for late payments may apply. All Service Fees are non-refundable and are not contingent on any additional services to be provided unless otherwise stated in the Scope of Services. Breakwater may increase the Service Fees each year with thirty (30) days’ advance notice. Customer shall reimburse Breakwater for reasonable out-of-pocket costs and expenses accrued by Breakwater in connection with the performance of Services.
- 4.1 Customer Property. Customer owns all intellectual property rights in all information and material of Customer provided to Breakwater or made available by Customer under this Agreement (“Customer Property”).
- 4.2 Deliverables. The parties understand and agree that all items delivered by Breakwater to Customer, including all ideas, know-how, processes, techniques, and inventions that Breakwater makes, develops, conceives, or reduces to practice pursuant to the performance of the Services (“Deliverables”) shall be owned by Customer, excluding Breakwater Property (as defined below) and subject to Customer’s payment of all Service Fees.
- 4.3 Breakwater Property. As between the parties, Breakwater owns all (a) intellectual property, ideas, know-how, processes, techniques and inventions that Breakwater uses in connection with the provision of the Services that Breakwater makes, develops, or reduces to practice, whether alone or jointly with others or otherwise obtained by Breakwater prior to, or independently of, this Agreement, (b) work product that has applicability to Breakwater’s provision of services to its customers generally, (c) all enhancements, modifications, improvements and derivative works of each and any of the foregoing and (d) intellectual and proprietary rights related to each and any of the foregoing (collectively, the “Breakwater Property”). Subject to Customer’s payment of all fees set forth in this Agreement, Breakwater hereby grants to Customer a non-exclusive, perpetual, irrevocable, worldwide, fully-paid right and license, under all of Breakwater’s intellectual property rights, to all Breakwater Property included in any Deliverable or necessary for Customer to fully utilize any Deliverable, to use, reproduce, distribute and create derivative works of such Breakwater Property solely for Customer’s internal business purposes.
5. WARRANTIES; DISCLAIMER.
- 5.1 Limited Warranty. Breakwater warrants to Customer that the Services will be performed in a professional manner in accordance with professional standards in the industry and the requirements of this Agreement. Breakwater shall, as its sole obligation and Customer’s sole and exclusive remedy for any breach of the warranty set forth in this Section 5.1, re-perform the Services which gave rise to the breach or, if Breakwater cannot re-perform such defective Services, Customer may terminate this Agreement pursuant to Section 7.2 for Breakwater’s breach; provided that Customer shall notify Breakwater in writing of the breach within thirty (30) days following performance of the defective Services, specifying the breach in reasonable detail.
- 5.2 Disclaimer. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION 5.1 ABOVE, THE SERVICES AND ANY BREAKWATER PROPERTY ARE PROVIDED “AS IS,” WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. BREAKWATER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE OR COURSE OF DEALING. BREAKWATER DOES NOT WARRANT THAT THE SERVICES OR THE BREAKWATER PROPERTY WILL MEET CUSTOMER’S REQUIREMENTS.
- 6.1 Definition. “Confidential Information” means all information disclosed by one party (“Discloser”) to the other party (“Recipient”) relating to or disclosed in the course of the performance of this Agreement. Confidential Information includes information that is marked or identified as confidential and, if not marked or identified as confidential, information that should reasonably have been understood by Recipient to be proprietary and confidential to Discloser or to a third party, because of legends or other markings, the circumstances of disclosure or the nature of the information itself.
- 6.2 Protection. Recipient will not use any Confidential Information of the Discloser for any purpose not expressly permitted by this Agreement and will disclose Confidential Information only to the employees or individual independent contractors of Recipient who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than Recipient’s duty hereunder. Recipient will protect Confidential Information from unauthorized use, access, or disclosure in the same manner as Recipient protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
- 6.3 Exceptions. Recipient shall not be in violation of the obligations under Section 6.2 above with respect to information that (a) was already lawfully known to Recipient at the time of disclosure by Discloser; (b) is disclosed to Recipient by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of Recipient has become, generally available to the public; or (d) is independently developed by Recipient without access to or use of the Confidential Information. In addition, Recipient may disclose Confidential Information to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body, provided that Recipient notifies Discloser of such required disclosure in writing prior to making such disclosure and cooperates with Discloser, at Discloser’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
7. TERM AND TERMINATION.
- 7.1 Term. Unless set forth otherwise in the Scope of Services, the initial term of this Agreement shall commence on the Effective Date and shall continue for a period of twelve (12) months, after which this Agreement shall automatically renew month-to-month until either party terminates pursuant to Section 7.2.
- 7.2 Termination. Either party may terminate this Agreement (a) at any time upon at least thirty (30) days’ prior written notice; (b) immediately by written notice in the event the other party is in material breach of any obligation under this Agreement, which default is incapable of cure or which, being capable of cure, has not been cured within thirty (30) days after receipt of notice of such default; and (c) immediately by written notice in the event Customer fails to pay any Service Fees within fifteen (15) days from their due date.
- 7.3 Effect of Termination. Upon the expiration or termination of this Agreement, (a) each party shall return the other’s Confidential Information in its possession or control, and (b) all amounts owed to Breakwater under this Agreement which accrued before such termination or expiration will be immediately due and payable. Sections 3, 4, 6, 7.3, 8, 10, and 11 will survive the expiration or termination of this Agreement for any reason.
8. INDEMNIFICATION. Each party (“Indemnitor”) shall at its own expense indemnify and hold harmless, and at the other party’s request, defend such party’s affiliates, subsidiaries, successors and assigns officers, directors, employees, sublicensees, and agents (“Indemnitees”) from and against any and all third-party claims, losses, liabilities, damages, costs, and other expenses (including but not limited to attorneys’ fees and litigation costs) which arise directly or indirectly out of (a) a material breach of this Agreement by Indemnitor; (b) the Indemnitor’s provision to Indemnitee of misleading, inaccurate, or incomplete information or data; or (c) the gross negligence or willful misconduct of the Indemnitor’s employees or agents.
9. INSURANCE. Each party shall, at its own expense, maintain appropriate insurance coverage with commercially reasonable policy limits to adequately operate its business. Upon a party’s written request, the other party shall deliver a Certificate of Insurance evidencing such coverage.
10. LIMITATIONS OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA, LOST PROFITS AND COSTS OF SUBSTITUTE GOODS OR SERVICES, ARISING FROM OR RELATING TO THIS AGREEMENT, THE USE OF OR INABILITY TO USE THE BREAKWATER PROPERTY OR ANY SERVICES PROVIDED HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL EITHER PARTY’S TOTAL CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE USE OF OR INABILITY TO USE THE BREAKWATER PROPERTY OR ANY SERVICES PROVIDED HEREUNDER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED AN AMOUNT EQUAL TO THE TOTAL FEES PAID OR PAYABLE TO BREAKWATER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY. THE LIMITATIONS OF LIABILITY IN THIS SECTION 10 SHALL NOT APPLY TO A PARTY’S INDEMNIFICATION OBLIGATIONS OR TO ANY LIABILITY ARISING FROM A PARTY’S FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
11. NON-SOLICITATION OF EMPLOYEES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE CUSTOMER AGREES NOT TO HIRE, OR TO CAUSE ANY THIRD PARTY TO HIRE, ANY EMPLOYEE OF BREAKWATER FOR A PERIOD OF TWO (2) YEARS FROM THE DATE ON WHICH THIS AGREEMENT EXPIRES OR IS TERMINATED BY EITHER PARTY. THE PARTIES RECOGNIZE THAT (a) BREAKWATER’S REPUTATION DEPENDS ON RETAINING QUALITY, TALENTED EMPLOYEES; (b) THE LOSS OF ANY EMPLOYEE MAY ADVERSELY AFFECT PROJECTS THAT BREAKWATER HAS CONTRACTED FOR; AND (c) THE LOSSES TO BREAKWATER’S BUSINESS AND REPUTATION WILL BE LARGE. CONSEQUENTLY, THE PARTIES AGREE THAT IF CUSTOMER BREACHES THIS SECTION BY HIRING AN EMPLOYEE OF BREAKWATER, ACTUAL DAMAGES MAY BE DIFFICULT TO PROVE, AND THE PARTIES AGREE THAT THE CUSTOMER SHALL PAY TO BREAKWATER, AS LIQUIDATED DAMAGES AND NOT AS A PENALTY, ONE HUNDRED AND FIFTY PERCENT (150%) OF EACH EMPLOYEE SO HIRED’S ANNUAL SALARY, WHICH AMOUNT THE PARTIES AGREE IS A GENUINE AND REASONABLE PRE-ESTIMATE OF THE DAMAGES BREAKWATER WILL SUFFER. IN THE EVENT THAT CUSTOMER HAS MADE BREAKWATER’S SERVICES AVAILABLE TO ANY THIRD PARTY, SUCH THIRD PARTY SHALL BE DEEMED TO BE CUSTOMER FOR PURPOSES OF THIS SECTION AND ANY HIRING OF A BREAKWATER EMPLOYEE BY SUCH THIRD PARTY SHALL BE DEEMED TO BE HIRING OF SUCH EMPLOYEE DIRECTLY BY CUSTOMER.
12. Remedies. Except as otherwise expressly provided in this Agreement, the parties’ rights and remedies under this Agreement are cumulative. If any legal action is brought by a party to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive from the non-prevailing party.
13. GENERAL. All notices, consents, and approvals under this Agreement must be delivered in writing (e-mail to suffice) to the other party at the emails specified by each party. The relationship of the parties established under this Agreement is that of independent contractors and neither party is a partner, employee, agent, or joint venture partner of or with the other, and, except as expressly set forth in this Agreement, neither party has the right or authority to assume or create any obligation on behalf of the other party. This Agreement shall be governed by and construed in accordance with the laws of the state of Delaware, without reference to conflict of laws principles. Each party shall comply with those laws and regulations in jurisdictions within the United States that are specifically applicable to the applicable party notwithstanding this Agreement. This Agreement may not be amended except with written consent of both parties hereto (email to suffice). Any waiver of a party’s rights pursuant to this Agreement must be in writing and signed by the party entitled to the benefit of the right being waived. No other action or inaction shall have the effect of waiving a party’s right to enforce any provision thereafter. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party; except pursuant to a transfer of all or substantially all of such party’s business and assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, or otherwise. Any assignment in violation of this provision will be void. This Agreement will be binding upon each party’s valid heirs, successors, and assigns. This Agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes all other oral or written representations and understandings. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions of this Agreement will continue in full force and effect.