PROFESSIONAL SERVICES ENGAGEMENT LETTER (THE “AGREEMENT”) BETWEEN SALT LAKE CITY BOOKKEEPING LLC (“SLCB”) AND (“CLIENT”)
This is to confirm our understanding of the terms and objectives of our engagement and the nature and limitations of the services SLCB will provide. SLCB is pleased to provide the professional services to Client described herein. Please read this letter carefully, because it outlines expectations by both SLCB and Client. The intention of this letter is to confirm Clients’ understanding of, and agreement with, both what is included with SLCB services, as well as the limitations of the services Client has asked us to perform.
Services
Only the services which are listed (the “Services”) in the attached schedules (the “Schedules”) are included within the scope of our instructions. Client will review and approve all journal entries, transaction classifications, and account codes determined or changed by SLCB in the performance of SLCB Services.
If there are additional services that Client would like SLCB to perform which are not listed on the Schedules, SLCB will send a written quote to Client before the commencement of said additional work, which may include additional Fees. Once the scope of the additional work is agreed upon in writing (electronic signatures are sufficient), SLCB will issue an amended Agreement or amended Schedules via SLCB’s online proposal system and will ask Client to sign the amended agreement or Schedules before SLCB commences the additional Services.
Period of Engagement
This engagement starts on a date set and is valid until it's terminated in accordance with this Agreement’s Termination Policy (below) or superseded by an amended Professional Services Agreement between the parties.
Termination Policy
Termination for Convenience. Either party, in its sole discretion, may terminate this Agreement, in whole or in part, at any time without cause, by providing at least 15 days' prior written notice to the other party.
Termination for Cause. SLCB would prefer to correctly address any concerns one party has with the other party and allow for a chance to correct any issues or problems that may arise during the Period of Engagement. However, either party may terminate this Agreement, effective upon written notice to the other party (the "Defaulting Party"), if the Defaulting Party (a) breaches this Agreement, and such breach is incapable of cure, or with respect to a breach capable of cure, the Defaulting Party does not cure such breach within 10 days after receipt of written notice of such breach; (b) becomes insolvent; (c) admits its inability to pay its debts generally as they become due; (d) becomes subject to any bankruptcy proceeding which is not dismissed or vacated within 90 days after filing; (e) is dissolved or liquidated; (f) makes a general assignment for the benefit of creditors; or (g) has a receiver, trustee, custodian, or similar agent appointed by court order to take charge of or sell any material portion of its property or business.
Effects of Termination or Expiration. Upon expiration or termination of this Agreement for any reason, (a) SLCB shall: (i) deliver to Client all documents, work product, and other materials, whether or not complete, prepared by or on behalf of SLCB in the course of performing the Services for which Client has paid; (ii) return to Client all Client-owned property, equipment, or materials in its possession or control; (iii) remove any SLCB-owned property, equipment, or materials located at Client's locations; and (iv) provide reasonable cooperation and assistance to Client upon Client's written request and at Client's expense, in transitioning the Services to an alternate service provider; and (b) each party shall return to the other party or destroy, at the other party's discretion, all documents and tangible materials (and any copies, physical or electronic) containing, reflecting, incorporating or based on the other party's Confidential Information and certify in writing that it has done so; provided, however, that Client may retain copies of any Confidential Information of SLCB incorporated in the Deliverables to the extent necessary to allow it to make full use of the Services and any Deliverables.
Representations and Warranties
Mutual. Each party represents and warrants to the other party that: (a) it has the full right, power, and authority to enter into this Agreement, to grant the rights and licenses granted hereunder and to perform its obligations hereunder; and (b) when executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
SLCB. SLCB represents and warrants to Client that:
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, (i) EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE UNDER THIS AGREEMENT, AND (ii) SERVICE PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
Client Responsibilities
Client is responsible for any unauthorized creation, collection, receipt, transmission, access, storage, disposal, use, or disclosure of Personal Information under its control or in its possession. Client is also responsible for:
Client shall respond promptly and arrange for reasonable access to any SLCB request for information or approvals that SLCB requires to perform the Services. It may be necessary to ask Client for clarification regarding information Client provides..
SLCB will rely on the accuracy and completeness of the documents and information Client provides to SLCB. Accordingly, SLCB cannot be relied upon to disclose errors, fraud, or other illegal acts that may exist. SLCB will inform Client of any material errors, potential fraud or other illegal acts that come to our attention. However, SLCB is under no obligation to identify and communicate significant deficiencies or material weaknesses in Client’s internal controls as part of this Agreement.
Based on questions and/or concerns Client has regarding Clients’ ongoing financial reporting, accounting records, and business management issues, SLCB will offer SLCB’s opinion(s) and describe any alternatives SLCB may be aware of. SLCB’s opinion(s) will be based on SLCB’s knowledge, training and experience, but at all times, the decisions Client makes are strictly the Client’s.
"Personal Information" means information that Client provides or for which Client provides access to SLCB, or information which SLCB creates or obtains on behalf of client, in accordance with this Agreement that: (i) directly or indirectly identifies an individual (including, for example, names, signatures, addresses, telephone numbers, email addresses, and other unique identifiers); or (ii) can be used to identify or authenticate an individual (including, without limitation, employee identification numbers, government-issued identification numbers, passwords or PINs, user identification and account access credentials or passwords, financial account numbers, credit report information, answers to security questions, inferences drawn from other personal information to create consumer profiles, geolocation data, an individual's commercial, employment, or education history, and other personal characteristics and identifiers). Client's business contact information is not by itself Personal Information.
Scope of Limitations
Our engagement cannot be relied upon to disclose errors, irregularities or illegal acts, including fraud or defalcations, which may exist. SLCB may inform Client of any matters that come to our attention.
Confidentiality; Intellectual Property
Confidentiality. All non-public, confidential or proprietary information of either party ("Confidential Information"), including, but not limited to, information about such party's business affairs, products, services, methodologies, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, disclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party"), whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, or otherwise learned by the Receiving Party in connection with this Agreement, and whether or not marked, designated, or otherwise identified as "confidential," is confidential, solely for use in performing this Agreement and may not be disclosed or copied unless authorized by the Disclosing Party in writing. The Receiving Party shall protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care. Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of the Receiving Party's breach of this Agreement; (b) is obtained by the Receiving Party on a non-confidential basis from a third-party that was not legally or contractually restricted from disclosing such information; (c) the Receiving Party establishes by documentary evidence, was in its possession prior to the Disclosing Party's disclosure hereunder; (d) was or is independently developed by the Receiving Party without using any of the Disclosing Party's Confidential Information; or (e) is required to be disclosed under applicable federal, state or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction.
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 SLCB in the course of performing the Services (collectively, the "Deliverables") shall be owned exclusively by Client. SLCB agrees and will cause its SLCB personnel to agree, that with respect to any Deliverables that may qualify as "work made for hire" as defined in 17 U.S.C. §101, such Deliverables are hereby deemed a "work made for hire" for Client. To the extent that any of the Deliverables do not constitute a "work made for hire," SLCB hereby irrevocably assigns and shall cause its personnel to irrevocably assign to Client all Intellectual Property Rights worldwide in the Deliverables. The SLCB shall cause its personnel to irrevocably waive, to the extent permitted by applicable law, any and all claims such SLCB personnel may now or hereafter have in any jurisdiction to so-called "moral rights" or rights of droit moral with respect to the Deliverables..
Electronic (Email) Communications
In connection with this engagement, SLCB may communicate with Client or others via email transmission. As emails can be intercepted and read, disclosed, or otherwise used or communicated by an unintended third party, or may not be delivered to each of the parties to whom they are directed and only to such parties, SLCB cannot guarantee or warrant that emails from us will be properly delivered and read only by the addressee. Therefore, SLCB specifically disclaims and waives any liability or responsibility whatsoever for interception or unintentional disclosure of emails transmitted by SLCB in connection with this Agreement.
Information Security and Record Retention
Information Security. SLCB will comply with applicable laws and regulations in its creation, collection, receipt, access, use, storage, disposal, and disclosure of Personal Information. SLCB will employ reasonable security measures to protect Personal Information in accordance with accepted industry standards or other applicable industry standards for information security. If, in the course of its performance under this Agreement, SLCB has access to or will collect, access, use, store, process, dispose of, or disclose credit, debit, or other payment cardholder information on client's behalf, SLCB will comply with the Payment Card Industry Data Security Standard ("PCI DSS") requirements, as applicable. SLCB will notify Client of a data breach or security incident as soon as reasonably practicable, after SLCB becomes aware of it.
SLCB may use one or more third party applications (including internet-based application providers) to provide portions of the Services to Client. This may include online filing of Clients’ accounts payable or other business documents. SLCB will ensure that third-party service providers who SLCB shares information with agree to protect Client confidential information and to use it only in connection with the services they perform for SLCB. By signing this Agreement Client confirms that Client understands SLCB is not liable for the record retention policy, security, or any other aspect of the services provided by any third parties SLCB uses.
Please feel free to inquire if Client would like additional information regarding the transmission of confidential information to entities outside SLCB.
It is SLCB’s policy to keep records related to this Agreement for seven (7) years for discontinued clients and indefinitely for ongoing clients. SLCB will provide Client with copies of all reports prepared by SLCB and it Client’s responsibility to store and secure any reports or records SLCB shares with Client.
Indemnification
Each party ("Indemnifying Party") shall indemnify, defend, and hold harmless the other party and its officers, directors, employees, agents, affiliates, successors, and permitted assigns ("Indemnified Party") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and costs awarded against Indemnified Party in a final non-appealable judgment (collectively, "Losses"), relating to any claim of a third party arising out of or occurring in connection with: (a) bodily injury, death of any person or damage to real or tangible, personal property resulting from Indemnifying Party's willful, fraudulent or negligent acts or omissions; or (b) Indemnifying Party's negligence, willful misconduct, or material breach of this Agreement, including but not limited to material breach of any representation or warranty made by Indemnifying Party in this Agreement..
Limitation of Liability
EXCEPT FOR OBLIGATIONS TO MAKE PAYMENT, INDEMNIFICATION OBLIGATIONS, LIABILITY FOR BREACH OF CONFIDENTIALITY, OR LIABILITY FOR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR: (A) ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA 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 DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) DIRECT DAMAGES OF MORE THAN TWO (2) TIMES THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SERVICE PROVIDER IN THE TWELVE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Billing
Client shall pay the fees as follows:
Invoicing and Payment
Upon execution of this Agreement, which includes the Schedule(s), Client shall provide a sufficient method of payment in order for SLCB to automatically withdraw the fees agreed upon by the parties as follows:
Client agrees to update SLCB if their method or form of payment changes or they need to update a credit card in a timely manner.
Governing Law; Venue; Attorneys Fees
This Agreement will be governed by the laws of the state of Montana. Any action relating to this Agreement must be brought in the federal or state courts located in the Missoula County, state of Montana. Both parties consent to the jurisdiction of such courts.
If either party brings an action against the other concerning the performance of this Agreement, the party who prevails shall be entitled to recover reasonable attorney fees and costs incurred in defending such suit.
Non-Solicitation of Employees Client agrees that Client will not hire or offer to hire any employee of SLCB for a period of at least two (2) years after Client terminates Client’s engagement with SLCB. Client agrees that if Client does hire an employee of SLCB during such a time period, then as a liquidated damage Client will pay to SLCB an amount equal to 30% of the annual income paid to such employee. For purposes of this paragraph, the annual income will be calculated as the greatest amount paid to the employee in any calendar month, within 12 months before or after the date of hire, multiplied by 12.
1099 Filing Clause: If Client has independent contractors that work for Client’s business, it is up to Client to properly document independent contractor status, as well as to prepare and maintain the proper tax forms, including W-9 and 1099 forms to comply with Internal Revenue Service (IRS) classification and filing rules. SLCB will file Client 1099’s if requested, but it’s not SLCB responsibility to ensure Client has all of the documentation and forms necessary to ensure compliance with IRS laws, rules, and regulations related to employment status, including independent contractor status, as well as any other employment status. SLCB will not be held liable for any fines or penalties from the IRS related to misclassification or improper filing that Client may experience. To ensure Client is complying with the IRS rules related to independent contractor status and proper tax filing, please follow this link: https://www.irs.gov/businesses/small-businesses-self-employed/forms-and-associated-taxes-for-independent-contractors. Additional information can also be found within the IRS website. Each state also has its own independent contractor laws and regulations and it is the Client’s responsibility to be informed as to what those state-based laws are.
Entire Agreement
This Agreement and any Schedules or exhibits incorporated herein contains the entire agreement and understanding among the parties hereto with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements, understandings, inducements and conditions, express or implied, oral or written, of any nature whatsoever with respect to the subject matter hereof. The express terms hereof control and supersede any course of performance and/or usage of the trade inconsistent with any of the terms hereof.
Confirmation of Terms
Please review and digitally sign this letter below to indicate that it is in accordance with Clients’ understanding of the arrangements.
Yours sincerely,
Matt Roberge
