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Baker Tilly Virchow Krause, LLP
<br />Standard Business Terms (cont.l
<br />of merchantability, ACCURACY, TITLE, non -infringement, or fitness for a
<br />particular purpose, or otherwise.
<br />Section 6. Limitation on Dama es and Indemnification
<br />(a) The liability (including attorney's fees and ALL other costs) of Baker
<br />Tilly and its present or former partners, principals, agents or employees
<br />related to any claim for damages relating to the services performed
<br />under this Agreement shall not exceed the fees paid to Baker Tilly for the
<br />portion of the work to which the claim relates, including attorney's fees
<br />related to any breach of contract claim, except to the extent finally
<br />determined to have resulted from the willful misconduct or fraudulent
<br />behavior of Baker Tilly relating to such services. This limitation of liability
<br />is intended to apply to the full extent allowed by law, regardless of the
<br />grounds or nature of any claim asserted, including the negligence of
<br />either party. Additionally, in no event shall either party be liable for ANY
<br />lost profits, LOST Business opportunity, lost data, consequential, special,
<br />incidental, exemplary or punitive damages DELAYS, INTERRUPTIONS,
<br />OR VIRUSES arising out of or related to this Agreement even if the other
<br />party has been advised of the possibility of such damages.
<br />(b) Client acknowledges and agrees that, though the Services may
<br />include Baker Tilly's advice and recommendations, all employment
<br />decisions in connection with this Agreement, including without limitation
<br />whether to hire any particular candidate, are the responsibility of, and
<br />shall be made by, Client.
<br />(c) In the event Baker Tilly is requested by the Client; or required by
<br />government regulation, subpoena, or other legal process to produce our
<br />engagement working papers or its personnel as witnesses with respect
<br />to its Services rendered for the Client, so long as Baker Tilly is not a
<br />party to the proceeding in which the information is sought, Client will
<br />reimburse Baker Tilly for its professional time and expenses, as well as
<br />the fees and legal expenses, incurred in responding to such a request.
<br />(d) Because of the importance of the information that Client provides to
<br />Baker Tilly with respect to Baker Tilly's ability to perform the Services,
<br />Client hereby releases Baker Tilly and its present and former partners,
<br />principals, agents and employees from any liability, damages, fees,
<br />expenses and costs, including attorneys fees, relating to the Services,
<br />that arise from or relate to any information, including representations by
<br />management, provided by Client, its personnel or agents, that is not
<br />complete, accurate or current.
<br />(e) Each party recognizes and agrees that the warranty disclaimers and
<br />liability and remedy limitations in this Agreement are material bargained
<br />for bases of this Agreement and that they have been taken into account
<br />and reflected in determining the consideration to be given by each party
<br />under this Agreement and in the decision by each party to enter into this
<br />Agreement.
<br />(f) The terms of this Section 6 shall apply regardless of the nature of any
<br />claim asserted (including, but not limited to, contract, tort, or any form of
<br />negligence, whether of Client, Baker Tilly or others), but these terms
<br />shall not apply to the extent finally determined to be contrary to the
<br />applicable law or regulation. These terms shall also continue to apply
<br />after any termination of this Agreement.
<br />(g) Client accepts and acknowledges that any legal proceedings arising
<br />from or in conjunction with the services provided under this Agreement
<br />must be commenced within forty-eight (48) months after the completion
<br />or termination of this Agreement.
<br />Section 7. Personnel
<br />During the term of this Agreement, and for a period of six (6) months
<br />following the expiration or termination thereof, neither party will actively
<br />solicit the employment of the personnel of the other party involved
<br />directly with providing Services hereunder. Both parties acknowledge
<br />that the fee for hiring personnel from the other party, during the project
<br />term and within six months following completion, will be a fee equal to
<br />the hired person's annual salary at the time of the violation so as to
<br />reimburse the party for the costs of hiring and training a replacement.
<br />Section 8. Termination
<br />(a) This Agreement may be terminated at any time by either party upon
<br />written notice to the other. However, upon termination of this Agreement,
<br />this Agreement will continue to remain in effect with respect to any
<br />Statement(s) of Work already issued at the time of such termination, until
<br />such Statements of Work are themselves either terminated or the
<br />performance thereunder is completed.
<br />(b) This Agreement and all Statements of Work may be terminated by
<br />either party effective immediately and without notice, upon: (i) the
<br />dissolution, termination of existence, liquidation or insolvency of the other
<br />party, (ii) the appointment of a custodian or receiver for the other party,
<br />(iii) the institution by or against the other party of any proceeding under
<br />the United States Bankruptcy Code or any other foreign, federal or state
<br />bankruptcy, receivership, insolvency or other similar law affecting the
<br />rights of creditors generally, or (iv) the making by the other party of any
<br />assignment for the benefit of creditors.
<br />(c) Client shall pay Baker Tilly for all Services rendered and expenses
<br />incurred as of the date of termination, and shall reimburse Baker Tilly for
<br />all reasonable costs associated with any termination.
<br />(d) Any rights and duties of the parties that by their nature extend beyond
<br />the expiration or termination of this Agreement, including but not limited
<br />to, limitation of liability, confidentiality, ownership of work product, and
<br />survival of obligations, any accrued rights to payment and remedies for
<br />breach of this Agreement shall survive the expiration or termination of
<br />this Agreement or any Statement of Work.
<br />Section 9. Di s ute Resolution
<br />(a) Except for disputes related to confidentiality or intellectual property
<br />rights, all disputes and controversies between the parties hereto of
<br />every kind and nature arising out of or in connection with this Agreement
<br />as to the existence, construction, validity, interpretation or meaning,
<br />performance, nonperformance, enforcement, operation, breach,
<br />continuation, or termination of this Agreement shall be resolved as set
<br />forth in this Section using the following procedure: In the unlikely event
<br />that differences concerning the Services or fees should arise that are not
<br />resolved by mutual agreement, both parties agree to attempt in good
<br />faith to settle the dispute by engaging in mediation administered by the
<br />American Arbitration Association under its mediation rules for
<br />professional accounting and related services disputes before resorting to
<br />litigation or any other dispute -resolution procedure. Each party shall bear
<br />their own expenses from mediation and the fees and expenses of the
<br />mediator shall be shared equally by the parties. If the dispute is not
<br />resolved by mediation, then the parties may proceed to litigation.
<br />(b) Because a breach of any the provisions of this Agreement concerning
<br />confidentiality or intellectual property rights will irreparably harm the non -
<br />breaching party, Client and Baker Tilly agree that if a party breaches any
<br />of its obligations thereunder, the non -breaching party shall, without
<br />limiting its other rights or remedies, be entitled to seek equitable relief
<br />(including, but not limited to, injunctive relief) to enforce its rights
<br />thereunder, including without limitation protection of its proprietary rights.
<br />The parties agree that the parties need not invoke the mediation
<br />procedures set forth in this section in order to seek injunctive or
<br />declaratory relief.
<br />Section 10. Force Ma'eure
<br />In the event that either party is prevented from performing, or is unable to
<br />perform, any of its obligations under this Agreement due to any act of
<br />God, fire, casualty, flood, war, strike, lock out, failure of public utilities,
<br />injunction or any act, exercise, assertion or requirement of any
<br />governmental authority, epidemic, destruction of production facilities,
<br />insurrection, inability to obtain labor, materials, equipment, transportation
<br />or energy sufficient to meet needs, or any other cause beyond the
<br />reasonable control of the party invoking this provision (Tgrce Ma'eure
<br />Event"), and if such party shall have used reasonable efforts to avoid
<br />such occurrence and minimize its duration and has given prompt written
<br />notice to the other party, then the affected party's failure to perform shall
<br />be excused and the period of performance shall be deemed extended to
<br />reflect such delay as agreed upon by the parties.
<br />Section 11. Taxes
<br />Baker Tilly's fees are exclusive of any federal, national, regional, state,
<br />provincial or local taxes, including any VAT or other withholdings,
<br />imposed on this transaction, the fees, or on Client's use of the Services
<br />or possession of the Deliverable (individually or collectively, the "Taxes"),
<br />all of which shall be paid by Client without deduction from any fees owed
<br />by Client to Baker Tilly.
<br />Section 12. intentional) omitted
<br />Section 13. Miscellaneous
<br />(a) This Agreement and any Statement(s) of Work constitute the entire
<br />agreement between Baker Tilly and Client with respect to the subject
<br />matter hereof and supersede all prior agreements, promises,
<br />understandings and negotiations, whether written or oral, regarding the
<br />subject matter hereof. No terms in any Client purchase order that are
<br />different from, or additional to, the terms of this Agreement will be
<br />Consulting Terms Page 5 of 6 Rev.Oct.2016
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