Master Professional Services Agreement
This Master Professional Services Agreement (this “Agreement”) governs all services provided by All In One Accounting, Inc., a Minnesota corporation, with offices located at 1715 Yankee Doodle Road, Suite 305, St. Paul, Minnesota 55121 (the “Service Provider”). By utilizing Service Provider, you (the “Client”) hereby agrees to all of the terms contained herein as of the date that services are first provided to Client (“Effective Date”).
Client desires to retain Service Provider to provide certain outsourced accounting and strategic finance services upon the terms and conditions hereinafter set forth, and Service Provider is willing to perform such services.
In consideration of the mutual covenants and agreements hereinafter set forth, the parties agree as follows:
1.Definitions
“Action” has the meaning set forth in Section 10.1.
“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.
“Agreement” has the meaning set forth in the preamble.
“Confidential Information” means any information that is treated as confidential by a party, including but not limited to all non-public information about its business affairs, products or services, Intellectual Property Rights, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether disclosed orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential”. Confidential Information shall not include information that: (a) is already known to the Receiving Party without restriction on use or disclosure prior to receipt of such information from the Disclosing Party; (b) is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, the Receiving Party; (c) is developed by the Receiving Party independently of, and without reference to, any Confidential Information of the Disclosing Party; or (d) is received by the Receiving Party from a third party who is not under any obligation to the Disclosing Party to maintain the confidentiality of such information.
“Client” has the meaning set forth in the preamble.
“Client Contract Manager” has the meaning set forth in Section 4.1(a).
“Client Materials” means any documents, data, know-how, methodologies, software, and other materials provided to Service Provider by Client.
“Deliverables” means all documents, work product, and other materials that are delivered to Client hereunder or prepared by or on behalf of Service Provider in the course of performing the Services, including any items identified as such in a Statement of Work.
“Disclosing Party” means a party that discloses Confidential Information under this Agreement.
“Force Majeure Event” has the meaning set forth in Section 14.1.
“Intellectual Property Rights” means all (a) patents, patent disclosures, and inventions (whether patentable or not); (b) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith; (c) copyrights and copyrightable works (including computer programs), and rights in data and databases; (d) trade secrets, know-how, and other confidential information; and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
“Key Personnel” means any Service Provider Personnel who is identified by the Service Provider from time to time.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement, or rule of law of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
“Losses” mean all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Permitted Subcontractor” has the meaning set forth in Section 3.1(h).
“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
“Receiving Party” means a party that receives or acquires Confidential Information directly or indirectly under this Agreement.
“Service Provider” has the meaning set forth in the preamble.
“Service Provider Contract Manager” has the meaning set forth in Section 3.1(a)(i).
“Service Provider Personnel” means all employees and Permitted Subcontractors, if any, engaged by Service Provider to perform the Services.
“Services” mean the professional services to be provided by Service Provider under this agreement, as described in more detail in a Statement of Work, and Service Provider’s obligations under this Agreement.
“Statement of Work” or “SOW” means each Statement of Work entered into by the parties and attached to this Agreement, substantially in the form of Exhibit A.
“Term” has the meaning set forth in Section 5.1.
2.Services
2.1Service Provider shall provide the Services to Client as described in more detail in each Statement of Work in accordance with the terms and conditions of this Agreement.
2.2Each Statement of Work shall include the following information, if applicable:
(a)a detailed description of the Services to be performed pursuant to the Statement of Work;
(b)the date upon which the Services will commence and the term of such Statement of Work;
(c)the names of the Service Provider Contract Manager and any Key Personnel;
(d)the fees to be paid to Service Provider under the Statement of Work;
(e)any criteria for completion of the Services; and
(f)any other terms and conditions agreed upon by the parties in connection with the Services to be performed pursuant to such Statement of Work.
3.Service Provider’s Obligations
3.1The Service Provider shall:
(a)appoint:
(i)a Service Provider employee to serve as a primary contact with respect to this Agreement and who will have the authority to act on behalf of Service Provider in connection with matters pertaining to this Agreement (the “Service Provider Contract Manager”); and
(ii)Key Personnel, who shall be suitably skilled, experienced, and qualified to perform the Services;
(b)maintain the same Service Provider Contract Manager and other Key Personnel throughout the Term of this Agreement except for changes in such personnel due to:
(i)Client’s request pursuant to Section 3.1(c);
(ii)Change in personnel availability or capacity; or
(iii)the resignation or termination of such personnel or other circumstances outside of Service Provider’s reasonable control;
(c)upon the reasonable written request of Client, promptly replace the Service Provider Contract Manager and any other Service Provider Personnel;
(d)before the date on which the Services are to start, obtain, and at all times during the Term of this Agreement maintain, all necessary licenses and consents and comply with all relevant Laws applicable to the provision of the Services;
(e)prior to any Service Provider Personnel performing any Services hereunder: (i) ensure that such Service Provider Personnel have the legal right to work in the United States, and (ii) at its sole cost and expense, conduct background checks on such Service Provider Personnel, which background checks shall comprise, at a minimum, a review of credit history, references, and criminal record, in accordance with state, federal, and local law;
(f)comply with, and ensure that all Service Provider Personnel comply with, all rules, regulations, and policies of Client that are communicated to Service Provider in writing, including security procedures concerning systems and data and remote access thereto and general health and safety practices and procedures;
(g)maintain complete and accurate records relating to the provision of the Services under this Agreement, including records of the time spent and materials used by Service Provider in providing the Services in such form as Client shall approve. During the Term, upon Client’s written request, Service Provider shall allow Client or Client’s representative to inspect and make copies of such records and interview Service Provider Personnel in connection with the provision of the Services; provided that any such inspection shall take place during regular business hours no more than once per year and Client provides Service Provider with at least ten (10) business days advance written notice;
(h)obtain Client’s written approval, which shall not be unreasonably withheld, conditioned, or delayed, prior to entering into agreements with or otherwise engaging any Person, including all subcontractors and Affiliates of Service Provider, other than Service Provider’s employees, to provide any Services and Deliverables to Client (each such approved subcontractor or other third party, a “Permitted Subcontractor”). Client’s approval shall not relieve Service Provider of its obligations under the Agreement, and Service Provider shall remain fully responsible for the performance of each such Permitted Subcontractor and its employees and for their compliance with all of the terms and conditions of this Agreement as if they were Service Provider’s own employees. Nothing contained in this Agreement shall create any contractual relationship between Client and any Service Provider subcontractor or supplier; and
(i)require each Permitted Subcontractor to be bound in writing by the confidentiality and intellectual property assignment or license provisions of this Agreement, and, upon Client’s written request, to enter into a non-disclosure or intellectual property assignment or license agreement directly with Client in a form that is reasonably satisfactory to Client.
3.2Service Provider is responsible for all Service Provider Personnel and for the payment of their compensation, including, if applicable, withholding of income taxes, and the payment and withholding of social security and other payroll taxes, unemployment insurance, workers’ compensation insurance payments, and disability benefits.
3.3Service Provider acknowledges that time is of the essence with respect to Service Provider’s obligations hereunder and that prompt and timely performance of all such obligations is strictly required.
4.Client’s Obligations
4.1Client shall:
(a)cooperate with Service Provider in all matters relating to the Services and appoint and, in its reasonable discretion, replace a Client employee to serve as the primary contact with respect to this Agreement and who will have the authority to act on behalf of Client with respect to matters pertaining to this Agreement (the “Client Contract Manager”);
(b)provide, subject to Section 3.1(e), such access to Client’s premises and such office accommodation and other facilities as may reasonably be requested by Service Provider, for the purposes of performing the Services;
(c)respond promptly to any Service Provider request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Service Provider to perform Services in accordance with the requirements of this Agreement;
(d)provide such information as Service Provider may reasonably request, in order to carry out the Services, in a timely manner, and ensure that it is complete and accurate in all material respects; and
(e)obtain and maintain all necessary licenses and consents and comply with all applicable Law in relation to the Services, in all cases before the date on which the Services are to start.
4.2If Service Provider’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client or its agents, subcontractors, consultants, or employees outside of Service Provider’s reasonable control, Service Provider shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.
5.Term and Termination
5.1Term. This Agreement shall commence as of the Effective Date and shall continue unless sooner terminated pursuant to this Section 5 (“Term”).
5.2Termination for Convenience.
(a)Service Provider may terminate this Agreement upon thirty (30) days’ written notice to Client.
(b)Client may terminate this Agreement upon thirty (30) days’ written notice to Service Provider.
(c)The parties may terminate this Agreement at any time by mutual written agreement signed by both parties.
5.3Termination for Cause. Either party may terminate this Agreement or any SOW, effective upon written notice to the other party (the “Defaulting Party”), if the Defaulting Party:
(a)materially breaches this Agreement, and such breach is incapable of cure or, with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach; or
(b)(i) becomes insolvent or admits its inability to pay its debts generally as they become due; (ii) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven (7) business days or is not dismissed or vacated within sixty (60) days after filing; (iii) is dissolved or liquidated or takes any corporate action for such purpose; (iv) makes a general assignment for the benefit of creditors; or (v) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
5.4Effects of Termination or Expiration. Upon expiration or termination of this Agreement for any reason:
(a)Service Provider shall (i) promptly deliver to Client all Deliverables (whether complete or incomplete) for which Client has paid and all Client Materials in its possession; (ii) provide reasonable cooperation and assistance to Client upon Client’s written request and at Client’s expense in transitioning the Services to a different Service Provider; and (iii) on a pro rata basis, repay all fees and expenses paid in advance for any Services not performed or Deliverables not provided.
(b)Each party shall (i) return to the other party all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on the other party’s Confidential Information; (ii) permanently delete all of the other party’s Confidential Information stored electronically in any form, including on computer systems, networks, and devices such as cell phones; and (iii) certify in writing to the other party that it has complied with the requirements of this clause; provided, however, that Client may retain copies of any Confidential Information of Service Provider incorporated in the Deliverables or to the extent necessary to allow it to make full use of the Services and any Deliverables.
5.5Survival. The rights and obligations of the parties set forth in this Section 5.5 and Section 1, Section 7, Section 8, Section 9, Section 10, Section 11, Section 12, Section 14, and Section 15, and any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
6.Fees and Expenses; Payment Terms
6.1In consideration of the provision of the Services by the Service Provider and the rights granted to Client under this Agreement, Client shall pay the fees set forth in the applicable Statement of Work. Payment to Service Provider of such fees and the reimbursement of expenses pursuant to this Section 6 shall constitute payment in full for the performance of the Services, and, Client shall not be responsible for paying any other fees, costs, or expenses.
6.2The fees payable to Service Provider for the Services shall be calculated and paid as set forth in the applicable Statement of Work, which shall specify whether the Services are provided on a fixed-fee or hourly basis.
(a)Fixed-Fee Arrangements. Where the applicable Statement of Work specifies that Services are provided for a fixed fee, either on a monthly or by project basis, the total fees for the Services shall be the amount set forth in such Statement of Work, plus any expenses incurred in accordance with Section 6.4. Such fixed fees shall be paid to Service Provider in installments at the times and in the amounts set forth in the applicable Statement of Work. If Client requests, and Service Provider accepts, Services outside of the scope of its fixed-fee arrangement, Service Provider shall invoice Client hourly at its then current rates for such additional services.
(b)Hourly Arrangements. Where the applicable Statement of Work specifies that Services are provided on an hourly basis, the fees for the Services shall be calculated by multiplying the number of hours actually expended by Service Provider’s personnel in performing the Services by the applicable hourly rates set forth in the Statement of Work, plus any expenses incurred in accordance with Section 6.4. Service Provider shall maintain accurate records of time expended in performing the Services, which shall be made available to Client upon reasonable written request.
6.3Service Provider reserve the right to increase fixed-fee and hourly rates once per 12-month period. Service provider shall provide at least sixty (60) days written notices of any such price increases.
6.4Client agrees to reimburse Service Provider for all actual, documented, and reasonable out-of-pocket expenses, if any, incurred by Service Provider in connection with the performance of the Services that have been approved in advance in writing by Client.
6.5Service Provider shall issue invoices to Client only in accordance with the terms of this Section, and Client shall pay all properly invoiced amounts due to Service Provider within ten (10) days after Client’s receipt of such invoice. All payments hereunder shall be in US dollars and made by ACH transfer or credit card.
6.6Client shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Client hereunder. Any such taxes, duties, and charges currently assessed or which may be assessed in the future, that are applicable to the Services are for the Client’s account, and Client hereby agrees to pay such taxes; provided, that, in no event shall Client pay or be responsible for any taxes imposed on, or with respect to, Service Provider’s income, revenues, gross receipts, personnel, or real or personal property or other assets.
7.Intellectual Property Rights; Ownership
7.1Except as set forth in Section 7.3, Client is, and shall be, the sole and exclusive owner of all right, title, and interest in and to the Deliverables, including all Intellectual Property Rights therein. Service Provider agrees, and will cause its Service Provider 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”, Service Provider hereby irrevocably assigns, and shall cause the Service Provider Personnel to irrevocably assign to Client, in each case without additional consideration, all right, title, and interest throughout the world in and to the Deliverables, including all Intellectual Property Rights therein. The Service Provider shall cause the Service Provider Personnel to irrevocably waive, to the extent permitted by applicable Law, any and all claims such Service Provider Personnel may now or hereafter have in any jurisdiction to so-called “moral rights” or rights of droit moral with respect to the Deliverables.
7.2Upon Client’s reasonable request, Service Provider shall, and shall cause the Service Provider Personnel to, promptly take such further actions, including execution and delivery of all appropriate instruments of conveyance, as may be necessary to assist Client to prosecute, register, perfect, or record its rights in or to any Deliverables.
7.3Service Provider and its licensors are, and shall remain, the sole and exclusive owners of all right, title, and interest in and to the Pre-Existing Materials, including all Intellectual Property Rights therein. Service Provider hereby grants Client a limited, irrevocable, perpetual, fully paid-up, royalty-free, non-transferable (except in accordance with Section 15.7), non-sublicenseable, worldwide license to use, perform, display, execute, reproduce, distribute, transmit, modify (including to create derivative works), import, make, have made, sell, offer to sell, and otherwise exploit any Pre-Existing Materials to the extent incorporated in, combined with or otherwise necessary for the use of the Deliverables solely to the extent reasonably required in connection with Client’s receipt or use of the Services and Deliverables. All other rights in and to the Pre-Existing Materials are expressly reserved by Service Provider. For the avoidance of doubt, Client may use the Deliverables including but not limited to financial statements in the ordinary course of its business and may disclose the Deliverables to its lenders, auditors, accountants, attorneys, insurers, regulators, investors, board members, and other professional advisors in connection with such use, provided that any non-public information of Service Provider contained therein remains subject to the confidentiality obligations set forth in this Agreement.
7.4Client and its licensors are, and shall remain, the sole and exclusive owner of all right, title, and interest in and to the Client Materials, including all Intellectual Property Rights therein. Service Provider shall have no right or license to use any Client Materials except solely during the Term of the Agreement to the extent necessary to provide the Services to Client. All other rights in and to the Client Materials are expressly reserved by Client.
7.5Client acknowledges and agrees that Service provider may utilize third third-party software tools, applications, and system integrations (collectively, “Tools”) in connection with the performance of the Services, including but not limited to tools that connect to, access, or exchange data with Client’s accounting systems (e.g., QuickBooks), financial platforms, or other systems. Client hereby authorizes Service Provider to; i) access Client’s systems and accounts as reasonably necessary to perform the Services; establish and maintain integrations between Client systems and such Tools; and transmit, receive, store, and process Client data through such Tools solely for purposes of providing the Services.
Service Provider will use commercially reasonable efforts to select Tools that maintain appropriate security and confidentiality standards. Client acknowledges that use of third-party Tools may involve the processing of data by such third parties under their respective terms and policies. Service Provider shall not be responsible for failures, errors, or disruptions caused by third-party Tools, except to the extent resulting from Service Provider’s breach of this Agreement.
8.Confidential Information
8.1The Receiving Party agrees:
(a)not to disclose or otherwise make available Confidential Information of the Disclosing Party to any third party without the prior written consent of the Disclosing Party; provided, however, that the Receiving Party may disclose the Confidential Information of the Disclosing Party to its and its Affiliates, and their officers, employees, consultants, and legal advisors who have a “need to know”, who have been apprised of this restriction, and who are themselves bound by nondisclosure obligations at least as restrictive as those set forth in this Section 8;
(b)to use the Confidential Information of the Disclosing Party only for the purposes of performing its obligations under the Agreement or, in the case of Client, to make use of the Services and Deliverables; and
(c)to promptly notify the Disclosing Party in the event it becomes aware of any loss or disclosure of any of the Confidential Information of Disclosing Party.
8.2If the Receiving Party becomes legally compelled to disclose any Confidential Information, the Receiving Party shall provide:
(a)prompt written notice of such requirement so that the Disclosing Party may seek, at its sole cost and expense, a protective order or other remedy; and
(b)reasonable assistance, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.
(c)If, after providing such notice and assistance as required herein, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose no more than that portion of the Confidential Information which, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose and, upon the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment.
9.Representations and Warranties
9.1Each party represents and warrants to the other party that:
(a)it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization, or chartering;
(b)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;
(c)the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of the party; and
(d)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.
9.2Service Provider represents and warrants to Client that:
(a)it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with commercially reasonable industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement;
(b)it is in compliance with, and shall perform the Services in compliance with, all applicable Laws;
(c)(i) to Service Provider’s knowledge, none of the Services, Deliverables, and Client’s use thereof infringe or will infringe any Intellectual Property Right of any third party arising under the Law of the United States, and, (ii) as of the date hereof, there are no pending or, to Service Provider’s knowledge, threatened claims, litigation, or other proceedings pending against Service Provider by any third party based on an alleged violation of such Intellectual Property Rights, in each case, excluding any infringement or claim, litigation or other proceedings to the extent arising out of (x) any Client Materials or any instruction, information, designs, specifications, or other materials provided by Client to Service Provider, (y) use of the Deliverables in combination with any materials or equipment not supplied or specified by Service Provider, if the infringement would have been avoided by the use of the Deliverables not so combined, and (z) any modifications or changes made to the Deliverables by or on behalf of any Person other than Service Provider. Service Provider’s sole liability and Client’s sole and exclusive remedy for Service Provider’s breach of this Section 9.2(c) are Service Provider’s obligations under Section 10.2;
(d)the Services and Deliverables will be in conformity in all material respects with all requirements or specifications stated in this Agreement and the applicable Statement of Work for a period of thirty (30) days after delivery to Client. In the event of Service Provider’s breach of the foregoing warranty, Service Provider’s sole and exclusive obligation and liability and Client’s sole and exclusive remedy shall be as follows:
(i)The Service Provider shall use reasonable efforts to cure such breach; provided, that if Service Provider cannot cure such breach within a reasonable time (but no more than thirty (30) days) after Client’s written notice of such breach, Client may, at its option, terminate the Agreement by serving written notice of termination in accordance with Section 15.4.
(ii)In the event the Agreement is terminated in accordance with this Section 9.2(d), Service Provider shall within thirty (30) days after the effective date of termination, refund to Client any fees paid by the Client as of the date of termination for such Service or Deliverable less a deduction equal to the fees for receipt or use of such Deliverables or Service up to and including the date of termination on a pro-rated basis.
(iii)The foregoing remedy shall not be available unless Client provides written notice of such breach within thirty (30) days after delivery of such Service or Deliverable to Client or with respect to changes made by any Person other than Service Provider or at Service Provider’s direction.
9.3EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, THE SERVICES PROVIDED HEREUNDER ARE PROVIDED ON AN “AS IS” BASIS. SERVICE PROVIDER DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE UNDER THIS AGREEMENT, AND SERVICE PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF TITLE AND NON-INFRINGEMENT.
10.Indemnification
10.1Service Provider shall defend, indemnify, and hold harmless Client and Client’s Affiliates and their officers, directors, employees, agents, successors, and permitted assigns (each, a “Client Indemnitee”) from and against all Losses awarded against a Client Indemnitee in a final judgment arising out of or resulting from any third-party claim, suit, action, or proceeding (each, an “Action”) arising out of or resulting from:
(a)bodily injury, death of any person, or damage to real or tangible, personal property resulting from the willful, fraudulent, or grossly negligent acts or omissions of Service Provider or Service Provider Personnel; and
(b)Service Provider’s material breach of any representation, warranty, or obligation of Service Provider set forth in this Agreement.
10.2Service Provider shall defend, indemnify, and hold harmless the Client Indemnitees from and against all Losses awarded against a Client Indemnitee in a final judgment based on a claim that any of the Services or Deliverables or Client’s receipt or use thereof infringes any Intellectual Property Right of a third party arising under the Laws of the United States; provided, however, that Service Provider shall have no obligations under this Section 10.2 with respect to claims to the extent arising out of:
(a)any Client Materials or any instruction, information, designs, specifications, or other materials provided by Client in writing to Service Provider;
(b)use of the Deliverables in combination with any materials or equipment not supplied to Client or specified by Service Provider in writing, if the infringement would have been avoided by the use of the Deliverables not so combined; or
(c)any modifications or changes made to the Deliverables by or on behalf of any Person other than Service Provider or Service Provider Personnel.
10.3Client shall defend, indemnify, and hold harmless Service Provider and Service Provider’s Affiliates and their officers, directors, employees, agents, successors, and permitted assigns from and against all Losses awarded against Service Provider in a final judgment arising out of or resulting from any third-party Action arising out of or resulting from:
(a)bodily injury, death of any person, or damage to real or tangible, personal property resulting from the grossly negligent or willful acts or omissions of Client; and
(b)Client’s material breach of any representation, warranty, or obligation of Client in this Agreement.
10.4The party seeking indemnification hereunder shall promptly notify the indemnifying party in writing of any Action and cooperate with the indemnifying party at the indemnifying party’s sole cost and expense. The indemnifying party shall immediately take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the indemnifying party’s sole cost and expense. The indemnifying party shall not settle any Action in a manner that adversely affects the rights of the indemnified party without the indemnified party’s prior written consent, which shall not be unreasonably withheld, conditioned, or delayed. The indemnified party’s failure to perform any obligations under this Section 10.4 shall not relieve the indemnifying party of its obligations under this Section 10.4 except to the extent that the indemnifying party can demonstrate that it has been materially prejudiced as a result of such failure. The indemnified party may participate in and observe the proceedings at its own cost and expense.
10.5Notwithstanding anything to the contrary in this Agreement, the indemnifying party is not obligated to indemnify or defend the indemnified party against any claim (whether direct or indirect) to the extent such claim or corresponding losses arise out of or result from, in whole or in part, the indemnified party’s:
(a)gross negligence or more culpable act or omission (including recklessness or willful misconduct); or
(b)bad faith failure to materially comply with any of its obligations set forth in this Agreement.
11.Limitation of Liability
11.1EXCEPT AS OTHERWISE PROVIDED IN SECTION 11.3, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT 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.
11.2EXCEPT AS OTHERWISE PROVIDED IN SECTION 11.3, IN NO EVENT WILL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SERVICE PROVIDER IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
11.3The exclusions and limitations in Section 11.1 and Section 11.2 shall not apply to:
(a)damages or other liabilities arising out of or relating to a party’s failure to comply with its obligations under Section 7 (Intellectual Property Rights; Ownership);
(b)damages or other liabilities arising out of or relating to a party’s failure to comply with its obligations under Section 8 (Confidentiality);
(c)a party’s indemnification obligations under Section 10 (Indemnification);
(d)damages or other liabilities arising out of or relating to a party’s gross negligence, willful misconduct, or intentional acts;
(e)death or bodily injury or damage to real or tangible personal property resulting from a party’s negligent acts or omissions;
(f)damages or liabilities to the extent covered by a party’s insurance; and
(g)a party’s obligation to pay attorneys’ fees and court costs in accordance with Section 15.15.
12.Non-Solicitation
12.1During the Term of this Agreement and for a period of twelve (12) months thereafter, neither party shall, directly or indirectly, on their own behalf or on behalf of another person or entity:
(a)in any manner solicit, induce, attempt to solicit or induce, or entice any person who performed any work under this Agreement to leave their employment with the other party; or to work for, render services to, or provide advice to any third person or entity; or to in any way interfere adversely with the relationship between any such employee and the respective employer party; or
(b)cause, induce, attempt to cause or induce, solicit, contact, divert, or interfere with any supplier, vendor, agent, licensee, independent contractor, consultant or any other person or entity who performed work, rendered services to, or provided advice under this Agreement through a business relationship to the other party to cease doing business with that party
12.2If either party breaches Section 12.1, the breaching party shall, on demand, pay to the non-breaching party a sum equal to one (1) year’s basic salary or the annual fee or contracting price that was payable by the claiming party to that employee, worker, or independent contractor plus the recruitment costs incurred by the non-breaching party in replacing such person.
13.Non-Exclusivity
The Service Provider retains the right to perform the same or similar type of services for third parties during the Term of this Agreement.
14.Force Majeure
14.1No party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including without limitation the following force majeure events (“Force Majeure Events”): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; and (g) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within ten (10) days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue.
14.2During the Force Majeure Event, the non-affected party may similarly suspend its performance obligations until such time as the affected party resumes performance.
14.3The affected party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized and shall resume performance of its obligations as soon as reasonably practicable after the removal of the cause. If the affected party’s failure or delay remains uncured for a period of ninety (90) days following written notice given by it under this Section 14, the other party may thereafter terminate this Agreement upon thirty (30) days’ written notice.
15.Miscellaneous
15.1Each party shall, upon the reasonable request, and at the sole cost and expense, of the other party, promptly execute such documents and perform such acts as may be necessary to give full effect to the terms of this Agreement.
15.2The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
15.3Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement, or otherwise use the other party’s trademarks, service marks, trade names, logos, symbols, or brand names, in each case, without the prior written consent of the other party, which shall not be unreasonably withheld or delayed.
15.4All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by email if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient or (d) on the third (3rd) day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to Service Provider at the address below or to Client at the billing address included in Service Provider’s billing records (or at such other address for a party as shall be specified in a notice given in accordance with this Section 15.4).
If to Service Provider:All In One Accounting
1715 Yankee Doodle Road, Suite 305
Eagan, MN 55121
Email: becky.lewis@allinoneaccounting.com
Attention: Becky Lewis, Chief Operating Officer
15.5For purposes of this Agreement, (a) the words “include,” “includes,” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Sections, Schedules, Exhibits, and Statements of Work refer to the Sections of, and Schedules, Exhibits, and Statements of Work attached to this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Schedules, Exhibits, and Statements of Work referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.
15.6This Agreement, together with all Exhibits and Statements of Work and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any conflict between the terms and provisions of this Agreement and those of any Schedule, Exhibit or Statement of Work, the following order of precedence shall govern: (a) first, this Agreement, exclusive of its Exhibits; (b) second, the applicable Statement of Work; and (c) third, any Exhibits to this Agreement.
15.7Neither party may assign, transfer, or delegate any or all of its rights or obligations under this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed; provided, that, upon prior written notice to the other party, either party may assign the Agreement to an Affiliate of such party or to a successor of all or substantially all of the assets of such party through merger, reorganization, consolidation, or acquisition. No assignment shall relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer, or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
15.8This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.
15.9The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
15.10This Agreement may be amended, modified, or supplemented from time to time by the posting of a revised version on Service Provider’s website. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
15.11If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
15.12This Agreement shall be governed by and construed in accordance with the internal laws of Minnesota without giving effect to any choice or conflict of law provision or rule (whether of Minnesota or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of Minnesota. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Services provided hereunder shall be instituted exclusively in the federal courts of the United States or the courts of Minnesota in each case located in the city of St. Paul and County of Ramsey, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.
15.13Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
15.14Each party acknowledges that a breach by a party of Section 7 (Intellectual Property Rights; Ownership), Section 8 (Confidentiality), Section 12 (Non-Solicitation), or the non-compete portions of Section 13 (Non-Exclusivity) may cause the non-breaching party irreparable damages, for which an award of damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, the non-breaching party will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance, and any other relief that may be available from any court, in addition to any other remedy to which the non-breaching party may be entitled at law or in equity. Such remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.
15.15If any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.
15.16This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
Last Revised June 25th, 2026