AW Vanguard
Standard Terms and Conditions for Advisory and Tax Services Effective July 1, 2020
Services; Client Responsibilities.
(a) References herein to Client shall refer to the addressee of the Proposal, Master Services Agreement, Statement of Work, or Engagement Letter to which these Standard Terms and Conditions are attached or incorporated (the “Engagement Letter”) and references herein to AW Vanguard shall refer to AW Vanguard LLC, a Colorado registered limited liability company. Client, related individuals and organizations identified in the Engagement Letter and accompanying documents, Client’s companies and their affiliates, and their respective directors, officers, employees, and agents are collectively referred to herein as the “Client Parties.” AW Vanguard and firms and entities controlled by, or under common control with, AW Vanguard and one or more such member firms (collectively, the “Member Firms”), and their affiliates, and their respective shareholders, partners, principals, employees, and agents are collectively referred to herein as the “AW Vanguard Parties.”
(b) It is understood and agreed that AW Vanguard’s services may include advice and recommendations; but all decisions in connection with the implementation of such advice and recommendations shall be the responsibility of, and made by, Client. AW Vanguard will not perform management functions or make management decisions for Client.
(c) Written advice provided by AW Vanguard to Client under this Engagement Letter will be based on facts, representations, assumptions, and other information provided by Client to AW Vanguard, the completeness, accuracy and timeliness of which are critical factors in AW Vanguar’s ability to timely and accurately complete our services. In addition, Client acknowledges and agrees that the tax authorities AW Vanguard considers when rendering its advice are subject to change, retroactively and/or prospectively, and any such changes could affect the advice AW Vanguard issues to Client.
(d) Subsequent to the completion of this engagement, AW Vanguard will not update its advice, recommendations or work product for changes or modifications to the law and regulations, or to the judicial and administrative interpretations thereof, or for subsequent events or transactions, unless Client separately engages AW Vanguard to do so in writing after such changes or modifications, interpretations, events or transactions.
Tax Compliance Acknowledgements.
(a) AW Vanguard will not audit or independently verify data submitted by Client. AW Vanguard will not prepare Client’s financial data or related reports unless separately engaged to do so. AW Vanguard may ask for clarification of some of the information Client has provided AW Vanguard. This engagement cannot be relied on to uncover errors, omissions, or irregularities, should any exist, in the underlying information incorporated in the tax returns. AW Vanguard will inform Client of any such matters that come to AW Vanguard’s attention. Because Client has ultimate responsibility for the tax returns, Client is responsible for reviewing the returns before signing and filing them.
(b) If Client had a taxable presence (e.g., worked, employed others, owned or rented property) within a jurisdiction in which Client had not previously filed, Client may be subject to income or franchise tax in that jurisdiction, depending upon the particular facts. It is Client’s obligation to notify AW Vanguard if assistance is needed to determine whether Client is liable for income or franchise tax or has a filing requirement in new jurisdictions.
(c) All returns are subject to examination by the tax authorities. In the event of an examination, Client may be requested to produce documents, records, or other evidence to substantiate the items of income and deduction shown on the tax returns. In preparing Client’s returns, AW Vanguard relies on Client’s representations that it understands and has complied with applicable documentation requirements for Client’s income, expenses, deductions, and credits. If an examination occurs, and if Client and AW Vanguard agrees to have AW Vanguard assist or represent Client in the examination, any such additional services and the fees for those services will be set forth in a separate engagement letter.
(d) To facilitate the preparation of Client’s returns, Client agrees to provide complete and accurate data and documentation, as requested, in a timely manner. If business and personal data are not provided in the format requested, Client acknowledges additional time and commensurate fees and charges will be incurred.
(e) In order to ensure timely filing of the tax return, AW Vanguard must receive all requested information Client no later than eight (8) weeks prior to the tax return due date. If Client’s return is extended, Client acknowledges the extension does not relieve Client from paying any tax due on the tax return’s original due date or making quarterly estimated tax payments for the current year. Client further acknowledges failure to pay any tax due with the extension or failure to pay quarterly estimated tax payments may subject Client to various penalties and interest.
Electronic Filing
(a) Unless directed otherwise by Client in writing, AW Vanguard will electronically file the returns it prepares for Clients that tax authorities mandate electronic filing or electronic filing is available. AW Vanguard will provide filing instructions indicating the returns it will electronically file on Client’s behalf, after AW Vanguard receives Client’s e-file authorizations if any, and will provide Client with instructions and filing copies for Client’s paper filing of the returns that were not electronically filed.
(b) The AW Vanguard electronic filing identification number (EFIN) will be included in certain e-filing documentation for the returns e-filed using AW Vanguard-licensed software. The AW Vanguard EFIN is proprietary to AW Vanguard and Client is not authorized to use the AW Vanguard EFIN for any purpose.
Foreign Accounts & Holdings
(a) Client understands any person or entity subject to the jurisdiction of the United States (including individuals, corporations, partnerships, trusts, and estates) having a financial interest in, or signature or other authority over, bank accounts, securities, or other financial accounts may, depending on the nature and amount of such holdings, be required to report such relationship.
(b) Client acknowledges there are multiple forms or reports that must be filed with Client’s federal income tax returns or independently and failure to timely file such forms or reports may result in substantial civil and/or criminal penalties. Therefore, by Client’s signature on the Engagement Letter, Client acknowledges the requirement and affirmatively states that all such
information required for any reporting of foreign holdings and/or income will be provided to AW Vanguard.
Cryptocurrencies. The Internal Revenue Service’s and other agencies’ interest in and enforcement of transactions utilizing any cryptocurrency has significantly increased and many such transactions, if undertaken by Client, require reporting on Client’s tax returns. Client acknowledges that if it engaged in any transactions using Bitcoin, or other cryptocurrency, it must notify AW Vanguard so that AW Vanguard may advise Client on the proper reporting of such transactions.
Tax on Services, Interest, and Other Charges.
(a) All fees, charges and other amounts payable to AW Vanguard under the Engagement Letter do not include any sales, use, excise, value added or other applicable taxes, tariffs or duties, payment of which shall be Client’s sole responsibility, excluding any applicable taxes based on AW Vanguard’s net income or taxes arising from the employment or independent contractor relationship between AW Vanguard and its personnel.
(b) Client agrees to pay interest at the daily rate of five ten-thousandth (0.05%) on unpaid balances on properly submitted invoices after thirty (30) days from the invoice date.
(c) Client agrees to reimburse AW Vanguard for its time and expenses, including reasonable attorney’s fees, incurred in collecting unpaid balances on properly submitted invoices after ninety (90) days from the invoice date.
(d) Client agrees AW Vanguard will have the right to suspend or terminate its services if Client fails to pay fees and associated costs in a timely manner.
Termination. Either party may terminate the Engagement Letter at any time by giving written notice to the other party not less than thirty (30) calendar days before the effective date of termination.
Ownership and Use of Deliverables.
(a) AW Vanguard has created, acquired, owns or otherwise has rights in, and may, in connection with the performance of services under the Engagement Letter, use, provide, modify, create, acquire or otherwise obtain rights in, (i) concepts, ideas, methods, methodologies, procedures, processes, know-how, techniques, models, templates and software and (ii) the general elements of style, design, art work and graphics and content of general applicability included in AW Vanguard’s Deliverables (as defined below) or work product not specific to Client or the services under the engagement letter (collectively, the “AW Vanguard Property”). AW Vanguard retains all ownership and use rights in the AW Vanguard Property. Client shall acquire no rights or interest in the AW Vanguard Property, except as expressly provided in the next paragraph. AW Vanguard acknowledges that AW Vanguard Property shall not include any of Client’s confidential information or tangible or intangible property, and AW Vanguard shall have no ownership rights in such property.
(b) Except for AW Vanguard Property, and upon full and final payment to AW Vanguard under the Engagement Letter, the tangible items specified as deliverables or work product in the Engagement Letter including any intellectual property rights appurtenant thereto (the “Deliverables”) will become the property of Client. If any AW Vanguard Property is contained in any of the Deliverables, AW Vanguard hereby grants Client a royalty-free, paid-up, non exclusive, perpetual license to use such AW Vanguard Property in connection with Client’s use of the Deliverables. Client acknowledges and agrees that AW Vanguard shall have the right to retain for its files copies of each of the Deliverables, subject to the provisions of Paragraph 15 below.
(c) Client acknowledges and agrees that any advice, recommendations, information, Deliverables or other work product provided to Client by AW Vanguard in connection with the services under the Engagement Letter is intended for Client’s sole benefit and AW Vanguard does not authorize any other party to rely upon such advice, recommendations, information, Deliverables or other work product and any such reliance shall be at such party’s sole risk. Client agrees that if it makes such advice, recommendations, information or work product available to any third party other than as expressly permitted by the Engagement Letter the provisions of Paragraph 12(b) shall apply unless Client provides the written notice to the third party in substantially the
form of Appendix A hereto (the “Notice”), which Notice shall be acknowledged in writing by such third party and returned to Client. Upon request, Client shall provide AW Vanguard with a copy of the foregoing Notice and acknowledgement and any notice and acknowledgement sent to Client by such third party as contemplated by the Notice. Client may only make a Deliverable bearing the “AW Vanguard” name or logo available to a third party in its entirety. Notwithstanding the foregoing, (i) in the event of a disclosure made by Client that is required by law, that is made to a regulatory authority having jurisdiction over Client or that is made pursuant to Paragraph 22(a) below, no acknowledgement of the Notice shall be required and (ii) no Notice or acknowledgement shall be required with respect to disclosures expressly authorized by the Engagement Letter.
Warranties. AW Vanguard’s services under the Engagement Letter are subject to and will be performed in accordance with IRS and other professional standards applicable to the services provided by AW Vanguard under the Engagement Letter and in accordance with the terms thereof. AW Vanguard disclaims all other warranties, either express or implied.
Limitation on Damages. Except for the respective indemnification obligations of Client and AW Vanguard set forth herein, the liability of the Client Parties and the AW Vanguard Parties to one another, on account of any actions, damages, claims, liabilities, costs, expenses or losses in any way arising out of or relating to the services performed under the Engagement Letter shall be limited to the amount of fees paid or owing to AW Vanguard under the Engagement Letter. In no event shall any of the Client Parties or any of the AW Vanguard Parties be liable for consequential, special, indirect, incidental, punitive or exemplary damages, costs, expenses, or losses (including, without limitation, loss of use, lost profits or revenues, cost of capital, cancellation of permits, termination of contracts, tort or contract claims, and opportunity costs). For avoidance of doubt, any damages awarded against any of the Client Parties or the AW Vanguard Parties based on a third-party claim subject to indemnification hereunder shall not be subject to the disclaimer in the previous sentence. The provisions of this Paragraph shall apply regardless of the form of action, damage, claim, liability, cost, expense, or loss asserted, whether in contract, statute, tort
(including but not limited to negligence) or otherwise.
Infringement.
(a) AW Vanguard hereby agrees to indemnify, hold harmless and defend the Client Parties from and against any and all claims, liabilities, losses, expenses (including reasonable attorneys’ fees), fines, penalties, taxes or damages (collectively “Liabilities”) asserted by a third party against any of the Client Parties to the extent such Liabilities result from the infringement by the Deliverables (including any AW Vanguard Property contained therein) of such third party’s patents issued as of the date of the Engagement Letter, trade secrets, trademarks or copyrights. The preceding indemnification shall not apply to any infringement to the extent arising out of (i) use of the Deliverables other than in accordance with applicable documentation or instructions supplied by AW Vanguard or other than for Client’s internal business purposes; (ii) any alteration, modification or revision of the Deliverables not expressly agreed to in writing by AW Vanguard; or (iii) the combination of the Deliverables with materials not supplied or approved by AW Vanguard.
(b) In case any of the Deliverables (including any AW Vanguard Property contained therein) or any portion thereof is held, or in AW Vanguard’s reasonable opinion is likely to be held, to constitute infringement, AW Vanguard may, within a reasonable time, at its option either: (i) secure for Client the right to continue the use of such infringing item; or (ii) replace, at AW Vanguard’s sole expense, such item with a substantially equivalent non-infringing item or modify such item so that it becomes non infringing. In the event AW Vanguard is, in its reasonable discretion, unable to perform either of the options described in clauses (i) or (ii) above, Client shall return the allegedly infringing item to AW Vanguard, and AW Vanguard’s sole liability shall be to refund to Client the amount paid to AW Vanguard for such item; provided that the foregoing shall not be construed to limit AW Vanguard’s indemnification obligation set forth in Paragraph 11(a) above.
(c) The provisions of this Paragraph 11 state AW Vanguard’s entire liability and Client’s sole and exclusive remedy with respect to any infringement or claim of infringement.
Indemnification.
(a) AW Vanguard agrees to indemnify, hold harmless and defend the Client Parties from and against any and all Liabilities for physical injury to, or illness or death of, any person regardless of status, and damage to or destruction of any tangible property, which any of the Client Parties may sustain or incur, to the extent such Liabilities result from the negligence or willful misconduct of the AW Vanguard Parties. Client agrees to indemnify, hold harmless and defend the AW Vanguard Parties from and against any and all Liabilities for physical injury to, or illness or death of, any person regardless of status, and damage to or destruction of any tangible property, which any of the AW Vanguard Parties may sustain or incur, to the extent such Liabilities result from the negligence or willful misconduct of the Client Parties.
(b) In accordance with Paragraph 8(c), Client agrees to indemnify, defend and hold harmless the AW Vanguard Parties from and against any and all Liabilities incurred or suffered by or asserted against any of the AW Vanguard Parties in connection with a third party claim to the extent resulting from such party’s reliance upon AW Vanguard’s advice, recommendations, information, Deliverables or other work product as a result of Client’s disclosure of such advice, recommendations, information or work product without adhering to the notice requirements of Paragraph 8(c) above. The foregoing indemnification obligation shall apply regardless of whether the third-party claim alleges a breach of contract, violation of statute or tort (including without limitation negligence) by AW Vanguard.
(c) The party entitled to indemnification (the “Indemnified Party”) shall promptly notify the party obligated to provide such indemnification (the “Indemnifying Party”) of any claim for which the Indemnified Party seeks indemnification. The Indemnifying Party shall have the right to conduct the defense or settlement of any such claim at the Indemnifying Party’s sole expense, and the Indemnified Party shall cooperate with the Indemnifying Party. The party not conducting the defense shall nonetheless have the right to participate in such defense at its own expense. The Indemnified Party shall have the right to approve the settlement of any claim that imposes any liability or obligation other than the payment of money damages for which the Indemnifying Party has accepted responsibility.
Cooperation; Use of Information.
(a) Client agrees to cooperate with AW Vanguard in the performance of the services under the Engagement Letter and shall provide or arrange to provide AW Vanguard with timely access to and use of the personnel, facilities, equipment, data and information necessary for AW Vanguard to perform the services under the Engagement Letter. The Engagement Letter may set forth additional details regarding AW Vanguard’s access to and use of personnel, facilities, equipment, data and information.
(b) The Engagement Letter may set forth additional obligations of Client in connection with the services under the Engagement Letter necessary for AW Vanguard to perform its obligations under the Engagement Letter. Client acknowledges that its failure to satisfy these obligations could adversely affect AW Vanguard’s ability to provide the services under the Engagement Letter.
(c) Client acknowledges and agrees that AW Vanguard will, in performing the services under the Engagement Letter, base its conclusions on the facts and assumptions that Client furnishes and that AW Vanguard may use data, material, and other information furnished by or at the request or direction of Client without any independent investigation or verification and that AW Vanguard shall be entitled to rely upon the accuracy and completeness of such data, material and other information. Inaccuracy or incompleteness of such data, material and other information furnished to AW Vanguard could have a material adverse effect on AW Vanguard’s conclusions.
Independent Contractor. It is understood and agreed that each of the parties hereto is an independent contractor and that neither party is or shall be considered an agent, distributor or representative of the other. Neither party shall act or represent itself, directly or by implication, as an agent of the other or in any manner assume or create any obligation on behalf of, or in the name of, the other.
Confidentiality.
(a) “Confidential Information” means all documents, software, reports, data, records, forms and other materials obtained by one party (the “Receiving Party”) from the other party (the “Disclosing Party”) or at the request or direction of the Disclosing Party in the course of performing the services under the Engagement Letter: (i) that have been marked as confidential; (ii) whose confidential nature has been made known by the Disclosing Party to the Receiving Party; or (iii) that due to their character and nature, a reasonable person under like circumstances would treat as confidential. Notwithstanding the foregoing, Confidential Information does not include information which: (1) is already known to the Receiving Party at the time of disclosure by the Disclosing Party; (2) is or becomes publicly known through no wrongful act of the Receiving Party; (3) is independently developed by the Receiving Party without benefit of the Disclosing Party’s Confidential Information; (4) relates to information provided by AW Vanguard relating to the tax treatment or tax structure of any transaction; (5) the Receiving Party determines is required to be maintained or disclosed by the Receiving Party under sections 6011, 6111 or 6112 of the Internal Revenue Code (“IRC”) or the regulations thereunder or under any similar or analogous provisions of the laws of a state or other jurisdiction; or (6) is received by the Receiving Party from a third party without restriction and without a breach of an obligation of confidentiality.
(b) The Receiving Party will deliver to the Disclosing Party or destroy all Confidential Information of the Disclosing Party and all copies thereof when the Disclosing Party requests the same, except for copies retained in work paper files or records, anything that may be stored in back up media or other electronic data storage systems, latent data and metadata. Except as otherwise set forth in this Paragraph 15 or Paragraph 19 below, the Receiving Party shall not disclose to any person, firm or entity any Confidential Information of the Disclosing Party without the Disclosing Party’s express, prior written permission; provided, however, that notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to the extent that it is required or necessary to be disclosed pursuant to a statutory or regulatory provision or court or administrative order, or, subject to appropriate conditions of confidentiality, to fulfill professional obligations and standards (including quality and peer review) or to submit and process an insurance claim.
(c) The AW Vanguard Parties may aggregate Client information with information from other sources in connection with thought leadership projects, to improve the delivery of services to clients and to allow clients to evaluate various business transactions and opportunities. The AW Vanguard Parties will only use this information without attribution to Client and under circumstances where Client will not be identified as the source of the information.
(d) AW Vanguard may also use Client information and information relating to the services rendered under the Engagement Letter for the purpose of permitting the AW Vanguard Parties to access and share knowledge and information solely among the AW Vanguard Parties. The AW Vanguard Parties receiving this information will be obligated to comply with confidentiality obligations with respect to such information in accordance with this Paragraph 15.
(e) Each party shall exercise the same level of care to protect the other’s information as it exercises to protect its own confidential information but in no event less than reasonable care, except to the extent that applicable law or professional standards impose a higher requirement.
(f) If the Receiving Party receives a subpoena or other validly issued administrative or judicial demand requiring it to disclose the Disclosing Party’s Confidential Information, the Receiving Party shall, unless prohibited by law, provide prompt written notice to the Disclosing Party of such demand in order to permit it to seek a protective order. So long as the Receiving Party gives notice as provided herein, the Receiving Party shall be entitled to comply with such demand to the extent required by law, subject to any protective order or the like that may have been entered in the matter. In the event the Receiving Party is requested to testify or produce its documents relating to the services under the Engagement Letter pursuant to subpoena or other legal process in judicial or administrative proceedings to which it is not a party, or in connection with an informal inquiry or investigation with the consent of the Disclosing Party, the Disclosing Party shall reimburse the Receiving Party for its time and expenses, including reasonable attorney’s fees, incurred in responding to such requests.
Assignment. Subject to Paragraph 19 below, neither party may assign, transfer or delegate any of its rights or obligations without the prior written consent of the other party, such consent not to be unreasonably withheld. This Engagement Letter shall be binding upon and inure to the benefit of the Parties hereto and their successors, representatives and assigns forever.
Governing Law; Severability. The Engagement Letter and these Standard Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Colorado, without regard to its conflict of laws provisions, and, if applicable, the courts sitting in the City and County of Denver, Colorado, shall have exclusive jurisdiction for any litigation or other proceeding arising out of or relating to this Engagement Letter or the performance of the Services. In the event that any term or provision of the Engagement Letter or these terms shall be held to be invalid, void or unenforceable, then the remainder of the Engagement Letter and these terms shall not be affected, and each such term and provision shall be valid and enforceable to the fullest extent permitted by law.
Alternative Dispute Resolution.
(a) Any dispute or claim arising out of or relating to the Engagement Letter between the parties or the services provided thereunder shall be submitted first to non-binding mediation (unless either party elects to forego mediation by initiating a written request for arbitration) and if mediation is not successful within ninety (90) days after the issuance by one of the parties of a request for mediation then to binding arbitration in accordance with the Rules for Non-Administered Arbitration of the International Institute for Conflict Prevention and Resolution (the “IICPR”). Any issue concerning the extent to which any dispute is subject to arbitration, or any dispute concerning the applicability, interpretation, or enforceability of these dispute resolution procedures, including any contention that all or part of these procedures is invalid or unenforceable, shall be governed by the Federal Arbitration Act and resolved by the arbitrators. By operation of this provision, the parties agree to forego litigation over such disputes in any court of competent jurisdiction.
(b) Mediation, if selected, may take place at a location to be designated by the parties using the Mediation Procedures of the IICPR, with the exception of paragraph 6 (Selecting the Mediator).
(c) Arbitration shall take place in Denver, Colorado. The arbitration panel shall have no power to award non-monetary or equitable relief of any sort except as provided in IICPR Rule 13 (Interim Measures of Protection). Damages that are inconsistent with any applicable agreement between the parties, that are punitive in nature, or that are not measured by the prevailing party’s actual damages shall be unavailable in arbitration or any other forum. In no event, even if any other portion of these provisions is held to be invalid or unenforceable, shall the arbitration panel have power to make an award or impose a remedy that could not be made or imposed by a court deciding the matter in the same jurisdiction.
(d) Either party may seek to enforce any written agreement reached by the parties during mediation, or to confirm and enforce any final award entered in arbitration, in any court of competent jurisdiction.
(e) Notwithstanding the agreement to such procedures, either party may seek equitable relief to enforce its rights in any court of competent jurisdiction.
(f) Attorney’s Fees. The substantially prevailing Party in any dispute, in additional to all other rights and remedies, is entitled to recovery of its reasonable costs and attorney’s fees.
Use of Member Firms and Third-Party Service Providers.
(a) Client acknowledges and agrees that the services under the Engagement Letter, including any applicable tax advice, may be performed by a Member Firm. Client understands that each Member Firm is a separate, distinct and independent legal entity and is not a partner, principal, agent or affiliate of AW Vanguard and AW Vanguard is not a partner, principal, agent or affiliate of any other Member Firm.
(b) Client further acknowledges that in connection with the performance of services under the Engagement Letter, AW Vanguard and Member
Firms, in their discretion or at Client’s direction, may utilize the services of third party service providers within and without the United States to complete the services under the Engagement Letter.
(c) AW Vanguard uses third party service providers to provide at AW Vanguard’s direction administrative and clerical services to AW Vanguard. These third-party service providers may in the performance of such services have limited access to information, including but not limited to Confidential Information, received by AW Vanguard from or at the request or direction of Client. AW Vanguard represents to Client that each such third-party service provider has agreed to conditions of confidentiality with respect to Client’s information to the same or similar extent as AW Vanguard has agreed to pursuant to Paragraph 15 above. AW Vanguard has full responsibility to cause these third-party service providers to comply with such conditions of confidentiality and AW Vanguard shall be responsible for any consequences of their failure to comply.
(d) Accordingly, Client consents to AW Vanguard’s disclosure to a Member Firm or third party service provider and the use by such Member Firm and third party service provider of data and information, including but not limited to Confidential Information, received from or at the request or direction of Client for the purposes set forth in Paragraph 15 and this Paragraph 19.
(e) Any services performed by a Member Firm or third-party service provider shall be performed in accordance with the terms of the Engagement Letter and these Standard Terms and Conditions, including Paragraph 15 (Confidentiality), but AW Vanguard shall remain responsible to Client for the performance of such services. Client agrees that any claim relating to the services under the Engagement Letter may only be made against AW Vanguard and not any other Member Firm or third-party service provider referred to above.
Miscellaneous.
(a) Sarbanes-Oxley. Except as otherwise set forth in the Engagement Letter, in accepting this engagement, Client acknowledges that completion of this engagement or acceptance of Deliverables resulting from this engagement will not constitute a basis for Client’s assessment or evaluation of internal control over financial reporting and disclosure controls and procedures, or its compliance with its principal officer certification requirements under Section 302 of the Sarbanes-Oxley Act of 2002 (the “Act”). The services under the Engagement Letter shall not be construed to support Client’s responsibilities under Section 404 of the Act requiring each annual report filed under Section 13(a) or 15(d) of the Securities Exchange Act of 1934 to contain an internal control report from management.
(b) Electronic Communications. AW Vanguard and Client may communicate with one another by electronic mail or otherwise transmit documents in electronic form during the course of this engagement. Each party accepts the inherent risks of these forms of communication (including the security risks of interception of or unauthorized access to such communications, the risks of corruption of such communications and the risks of viruses or other harmful devices). Client agrees that the final hardcopy version of a document, including a Deliverable, or other written communication that AW Vanguard transmits to Client shall supersede any previous versions transmitted electronically by AW Vanguard to Client unless no such hard copy is transmitted.
(c) California Accountancy Act. For engagements where services will be provided by AW Vanguard through offices located in California, Client acknowledges that AW Vanguard is not a CPA nor a public accounting firm and that certain of AW Vanguard’s personnel who may be considered “owners” under the California Accountancy Act and implementing regulations (California Business and Professions Code section 5079(a); 16 Cal. Code Regs. sections 51 and 51.1) and who may provide services in connection with this engagement, may not be licensed as certified public accountants under the laws of any of the various states.
(d) Volume Rebates. Where AW Vanguard is reimbursed for expenses, it is AW Vanguard’s policy to bill clients the amount incurred at the time the good or service is purchased. If AW Vanguard subsequently receives a volume rebate or other incentive payment from a vendor relating to such expenses, AW Vanguard does not credit such payment to Client. Instead, AW Vanguard applies such payments to reduce its overhead costs, which costs are taken into account in determining AW Vanguard’s standard billing rates and certain transaction charges that may be charged to clients.
(e) Use of Names and Logos. Except as permitted by law or the terms of the Engagement Letter, neither party shall acquire hereunder any right to use the name or logo of the other party or any part thereof. Any such use shall require the express written consent of the owner party.
(f) Privileged Communications. Information relating to advice AW Vanguard provides to Client, including communications between AW Vanguard and Client and material AW Vanguard creates in the course of providing advice, may be privileged and protected from disclosure to the IRS or other governmental authority in certain circumstances. As AW Vanguard is not able to assert the privilege on Client’s behalf with respect to any communications for which privilege has been waived, Client agrees to promptly notify AW Vanguard of any such waivers, whether resulting from communications with AW Vanguard or third parties in the same or a related matter. Client also understands that privilege may not be available for communications with an audit client and that AW Vanguard personnel providing audit and non-audit services will discuss matters that may affect the audit to the extent required by applicable professional standards. Client agrees that AW Vanguard will not assert on Client’s behalf any claim of privilege unless Client specifically instructs AW Vanguard in writing to do so after discussing the specific request and the grounds on which such privilege claim would be made. Notwithstanding the foregoing, Client acknowledges that in no event will AW Vanguard assert any claim of privilege that AW Vanguard concludes, after exercising reasonable judgment, is not valid.
(g) Active Spreadsheets and Electronic Files. AW Vanguard may use models, electronic files and spreadsheets with embedded macros created by AW Vanguard to assist AW Vanguard in providing the services under the Engagement Letter. If Client requests a working copy of any such model, electronic file or spreadsheet, AW Vanguard may, at its discretion, make such item available to Client for its internal use only and such item shall be considered a Deliverable subject to Paragraph 8 above; provided that Client is responsible for obtaining the right to use any third party products necessary to use or operate such item.
(h) Non-Solicitation. During the term of the Engagement Letter and for one year thereafter, neither party shall solicit for hire as an employee, consultant or otherwise any of the other party’s personnel who have had direct involvement with the services under the Engagement Letter, without such other party’s express written consent. This prohibition shall not apply to any offers of employment which result from a general solicitation for employment, including without limitation, through the Internet, newspapers, magazines and radio.
(i) Interpretation. In the event of any mistake, ambiguity, or conflict with this agreement, neither Party shall be considered the author of the Engagement Letter, and no mistake, ambiguity, or conflict shall be construed more strongly against or more favorably toward either Party hereto.
Entire Agreement. The Engagement Letter and these Standard Terms and Conditions, including the Exhibits and Appendices hereto and thereto, constitute the entire agreement between AW Vanguard and Client with respect to the services under the Engagement Letter and supersede all other oral and written representations, understandings or agreements relating thereto.
Additional Terms for Engagements Involving Tax Services.
(a) Notwithstanding anything to the contrary set forth herein, no provision in the Engagement Letter or these Standard Terms and Conditions is or is intended to be construed as a condition of confidentiality within the meaning of IRC sections 6011, 6111, 6112 or the regulations thereunder, or under any similar or analogous provisions of the laws of a state or other jurisdiction. In particular, Client (and each employee, representative, or other agent of Client) may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of any transaction within the scope of this engagement and all materials of any kind (including opinions and other tax analyses) that are provided to Client relating to such tax treatment and tax structure. Client also agrees to use commercially reasonable efforts to inform AW Vanguard of any conditions of confidentiality imposed by third party advisors with respect to any transaction on which AW Vanguard advice is requested. Such notification must occur prior to AW Vanguard providing any advice with respect to the transaction.
(b) Treasury regulations under IRC section 6011 require taxpayers to disclose to the IRS their participation in reportable transactions and IRC section 6707A imposes strict penalties for noncompliance. Client agrees to use commercially reasonable efforts to inform AW Vanguard if Client is required to disclose any transaction covered by the Engagement Letter as a reportable transaction to the IRS or to any state or other jurisdiction adopting similar or analogous provisions. IRC section 6111 requires a material advisor with respect to a reportable transaction to disclose information on the transaction to the IRS by a prescribed date, and IRC section 6112 requires the material advisor to maintain, and make available to the IRS upon request, a list of persons and other information with respect to the transaction. AW Vanguard will use commercially reasonable efforts to inform Client if AW Vanguard provides Client’s identifying information to the IRS under IRC section 6111 or 6112, or to any state or other jurisdiction adopting similar or analogous provisions.
(c) Unless expressly provided for, AW Vanguard’s services do not include representing Client in the event of a challenge by the IRS or other tax or revenue authorities.
(d) In rendering tax advice, AW Vanguard may consider, for example, the applicable provisions of the Internal Revenue Code of 1986, and the Employee Retirement Income Security Act of 1974, each as amended, and the relevant state, local and foreign statutes, the regulations thereunder, income tax treaties, and judicial and administrative interpretations, thereof. These authorities are subject to change, retroactively or prospectively, and any such changes could affect the validity of AW Vanguard’s advice.