Macias Gini & O’Connell LLP
Terms and Conditions
I have read the attached Engagement Letter, including these Terms and Conditions, and understand its terms. I am authorized to sign the Engagement Letter on behalf of the party(ies) indicated.
These Terms and Conditions form part of the Engagement Letter under which Macias Gini & O’Connell LLP (MGO) will provide professional services to you (Client), as further described in the Engagement Letter to which this is attached. By signing the Engagement Letter, you agree to be bound by these Terms and Conditions. If you are using the services on behalf of a business, you represent, warrant, and agree that you have the authority to bind that business or entity to these terms and any policies referenced herein, including but not limited to those terms that limit MGO’s liability, and require mediation and/or arbitration for potential legal disputes.
1. Dispute Resolution and Time Limitation on Claims
If any dispute arises among the parties under the Engagement Letter, including these Terms and Conditions, or any claim related to the services provided for under the Engagement Letter or the fees charged, the parties agree to discuss the dispute, and, if necessary, to first try in good faith to settle the dispute by mediation administered by JAMS under its Comprehensive Rules and Procedures by JAMS, or ADR Services, Inc. (ADR), or American Arbitration Association (AAA), before filing a complaint or otherwise resorting to litigation or arbitration. The parties further agree the mediation will take place at a mediation service provider’s location in the county in which the MGO office that issued the final work product under this Engagement Letter is located. Each party shall be responsible for its own mediation expenses, and shall share equally in the mediator’s fees and expenses.
Other Disputes: If the parties cannot resolve any disputes arising out of the Engagement Letter, excluding any dispute over fees through mediation, either party may pursue action in a state court of competent jurisdiction in which the MGO office that issued the final work product under this Engagement Letter is located. Each party agrees that notwithstanding any applicable statute of limitations, any claim arising out of or related to this Engagement Letter must be filed within one (1) year after the party first knows of or has reason to know the facts underlying its claim or within two (2) years following the completion of the services provided for under this agreement, whichever is shorter. This paragraph may shorten, but in no event extend any period of limitation in actions otherwise provided by applicable law.
2. Limitation on Damages and Liability
Unless otherwise prohibited by law or applicable professional standards, you agree that MGO and its personnel shall not be liable to you for any claims, liabilities, or expenses, whether in contract, in tort, at law, or in equity, arising out of or relating to MGO’s failure to meet its obligations under this Engagement Letter, for an aggregate amount in excess of the amount of MGO’s fees actually paid to it under this Engagement Letter. Unless otherwise prohibited by law or applicable professional standard, in no event shall MGO or its personnel be liable for loss of profits, business opportunity, or any consequential, special, indirect, incidental, punitive, or exemplary damages relating to this engagement. It is acknowledged by the parties that the provisions of this Engagement Letter agreement, including the limitation on damages, have been negotiated at arms’ length. This limitation on damages provision shall apply to the fullest extent of the law.
We rely in good faith on all information, assumptions, procedures and decisions communicated to us by you, your employees or your representatives, and we will not be responsible for any loss or other obligation arising from our reliance. Furthermore, the procedures we will perform in our engagement will be heavily influenced by, and dependent upon the written and oral representations and information that we receive from you. You agree that you are responsible for the accuracy and completeness of the representations and information provided to us by your employees, representatives and management, and you acknowledge that we may rely on you to ensure the accuracy and completeness of the representations and information we receive from you, your employees and representatives. In view of the foregoing, You agree to release, hold harmless, indemnify and defend MGO, its partners and personnel from any claims, costs (including attorneys’ fees), losses, damages, liability, judgments, awards and settlements related to, arising out of, or resulting from misrepresentations, whether false, misleading, or incomplete information provided to us during our engagement by any you or your representatives , whether or not such representations were intentional or authorized by you, except to the extent it is finally judicially determined that a claim, cost, loss, damage, liability, judgment, award or settlement was the result of fraud or intentional misconduct, or violation of statutory law, on the part of MGO. This provision shall survive the termination of the Engagement Letter and the completion of our services.
3. Governing Law, Jurisdiction, and Severability
This agreement and its terms shall be governed by, and construed in accordance with, the laws of the State of the office that issued the final work product under this Engagement Letter. The parties agree to this choice of law and jurisdiction, and waive any defense based upon an inconvenient forum. This term will be enforced to the fullest extent permitted by applicable law. If any provision of the Engagement Letter, including these Terms and Conditions, is found by the court of competent jurisdiction to be unenforceable, such provision shall not affect the other provisions. However, such unenforceable provision shall be deemed modified to the extent necessary to render it enforceable, preserving to the fullest extent permissible the intent of the parties set forth in this agreement.
4. Subpoena and Other Release of Documents
As a result of our services to you, we may be required or requested to provide information, testimony, or documents to you or a third-party pursuant to a subpoena, court order or other administrative or legal process in connection with governmental regulations or activities, or a legal, arbitration or administrative proceeding, in which we are not a party. You agree that our efforts in complying with such requests or demands will be deemed a part of this engagement and MGO shall be entitled to additional compensation, and not limited to the budgeted or estimated fees and costs for the services provided for under the Engagement Letter, for our time and reimbursement for our out-of-pocket expenditures (including legal fees) in complying with such request or demand.
5. Use of Electronic Communication and Cloud-based Computing
In the performance of our professional services, we may communicate with each other and/or with others via email transmission. As emails can be intercepted and read, disclosed, or otherwise used by an unintended third party, we cannot guarantee that such email communication will be properly delivered and read only by the addressee. While we will use our best efforts to keep such communications secure in accordance with our obligations under applicable laws and professional standards, you recognize and accept that we have no control over the unauthorized interception of these communications once they have been sent. Therefore, you hereby waive any liability whatsoever for any unintended interception or unintentional disclosure of email transmissions in connection with the performance of our professional services. MGO uses cloud-based computing services, including the storage of data and files, at third party, offsite, secure facilities. In that regard, you agree that we shall have no liability for any loss or damage to any person or entity resulting from the use of email transmissions and cloud-based computing, including any direct or indirect damages that may result from any inadvertent or unanticipated disclosure of confidential or proprietary information, or disclosure through third party criminal conduct (e.g., hackers or hacking activities).
6. Privacy Policy
You are aware of, have had an opportunity to review, and consent to, MGO’s Online Privacy Policy, which in compliance with the California Consumer Protection Act explains how MGO collects, uses, and protects personal information you provide to MGO, and explains your rights related thereto. MGO’s Privacy policy also is in compliance with all applicable federal, state and local privacy and consumer protection laws and regulations. This is a link to MGO’s Privacy Policy: https://www.mgocpa.com/privacy.
7. Independence
If applicable to you and the services to be provided to you pursuant to the Engagement Letter, professional and certain regulatory standards require us to be independent, in both fact and appearance, with respect to the client in the performance of our services. Any discussions that your representatives have with professional personnel of MGO regarding employment could pose a threat to our independence. Moreover, if applicable, SEC rules could cause us not to be independent of the client if, within a restricted period, you were to hire, in a financial reporting oversight role, one of the engagement team members currently or previously assigned to the audit. This may include not only current employees of MGO, but also former employees and employees of other firms who work under our direction. Therefore, you agree to inform us prior to any such discussions so that we can implement appropriate safeguards to maintain our independence.
Moreover, to the extent that you have engaged a company affiliated with MGO to provide services related to your efforts to identify, interview, and hire officers, directors, or management, or related human resource efforts on your behalf, you agree to inform MGO so that MGO can evaluate whether there are any potential or actual independence considerations that may preclude, or otherwise limit the services MGO is able to perform. Therefore, you agree to inform us prior to any such discussions so that we can implement appropriate safeguards to maintain our independence.
If we provide both attest and non-attest services to you, then in order to maintain our independence, you assume all management responsibilities for any non-attest services that we provide as part of the Services. You will designate a qualified individual with suitable skill, knowledge, or experience, from your senior management to oversee the non-attest services, evaluate the adequacy and results of the non-attest services, and accept responsibility for such services.
8. Billing Policy
Each invoice is due and payable upon presentation and becomes past due after 30 days. An administrative charge of 1.5% per month may be charged on the unpaid balance outstanding over sixty (60) days past due.
9. Termination of Services and Withdrawal
We may terminate this agreement and withdraw from providing further services, (a) any invoice become delinquent; (b) we become aware of any criminal, fraudulent, or similar acts by you or your management, the Client, or its management is accused of or becomes the subject of an investigation by any governmental entity of criminal fraudulent or similar acts which causes us to have reasonable doubt as to the integrity of the Client or management; (c) you fail to provide us with information we request; (d) you cause a substantial delay in our engagement work or we are unable to complete the engagement or are unable to form an opinion for reasons beyond our control; (e) you violate any of the terms of this agreement or the Engagement Letter; or (f) we are no longer able to satisfy our professional obligations regarding independence or conflicts of interest, or pursuant to applicable professional standards, or statutes. If we withdraw for any reasons, you agree to pay all of our fees for work performed and expenses incurred through the effective date of our withdrawal.
10. Force Majeure
MGO shall not be liable for breach of this agreement or the Engagement Letter caused by circumstances beyond our reasonable control, including but not limited to the Client’s unwillingness, or failure to provide information necessary for the services to be completed.
11. Assignment
You shall not assign any rights, obligations or claims relating to this agreement or the Engagement. MGO reserves the right to assign this engagement agreement, including all rights and obligations thereunder, to MGO Advisory LLC without requiring additional consent from you. Such assignment shall not materially change the duties or increase the burden or risk imposed on the client under this agreement. You acknowledge and agree that this assignment is intended to facilitate the provision of services and does not impair your rights or remedies under this engagement letter.
12. Confidentiality
We may from time to time and depending on the circumstances and nature of the services we are providing, share your confidential information with third-party service providers, some of whom may be cloud-based, but we remain committed to maintaining the confidentiality and security of your information. Accordingly, we maintain internal policies, procedures, and safeguards to protect the confidentiality of your personal information. In addition, we will secure confidentiality terms with all service providers to maintain the confidentiality of your information and will take reasonable precautions to determine that they have appropriate procedures in place to prevent the unauthorized release of your confidential information to others. In the event that we are unable to secure appropriate confidentiality terms with a third-party service provider, you will be asked to provide your consent prior to the sharing of your confidential information with the third-party service provider. Although we will use our best efforts to make the sharing of your information with such third parties secure from unauthorized access, no completely secure system for electronic data transfer exists. As such, by your signature below, you understand that the firm makes no warranty, expressed or implied, on the security of electronic data transfers.
13. Requests for Information, Record Retention; Indemnification
In the event MGO or any of its employees or agents is called as a witness or requested to provide any information whether oral, written or electronic in any judicial, quasi-judicial, or administrative hearing or trial regarding information or communications that you have provided to this firm, or to provide any documents and workpapers prepared by MGO in accordance with the terms of this agreement, you agree to pay any and all reasonable expenses including fees and costs for our time at the rates specified above, as well as any legal or other fees that we incur as a result of such appearance or production of documents.
It is our policy to keep records related to this engagement for seven (7) years. However, MGO does not keep any original client records, so we will return those to you at the completion of the services rendered under this engagement. It is your responsibility to retain and protect your records (which includes any work product we provide to you as well as any records that we return) for possible future use, including potential examination by any government or regulatory agencies. MGO does not accept responsibility for hosting client information; therefore, you have the sole responsibility for ensuring you retain and maintain in your possession all your financial and non-financial information, data and records.
Because of the importance of oral and written representations to the effective performance of our services, the client releases and indemnifies our firm and its personnel from any and all claims, liabilities, costs and expenses attributable to any misrepresentation by you and your representatives.
By your signature on the Engagement Letter, you acknowledge and agree that upon the expiration of the seven-year period, MGO shall be free to destroy our records related to this engagement.