Venture Vision 360 and Customer may choose to execute one or more engagements for the purpose of expanding or itemizing the Services, fees, and payment structures; however, these Terms may be revised for future engagements. As such, the Terms provided with the most recent engagement executed between the Parties shall control all then active engagements between the Parties, including this Engagement.
Onboarding & Catchup Services
Venture Vision 360 may undertake work to set up Customer’s account, design and implement accounting policies & procedures, design or amend chart of accounts, identify and/or set up software and applications, code previous transactions (if necessary), reconcile previous periods (if necessary), and/or perform other work to enable service delivery to Customer by Venture Vision 360. These services may be referred to herein as “Onboarding Services” and “Catchup Services.” If Onboarding Services and Catchup Services are part of the Services for which Venture Vision 360 is engaged, Venture Vision 360 will identify information and access points needed from Customer in order to complete the Onboarding Services and Catchup Services. Delays in receiving this information from Customer or any other delays in the onboarding process that are outside of Venture Vision 360’s control (such as a delay due to lack of access to required systems or issues with third party software connectivity) may impact the timing and completion of Onboarding Services and Catchup Services. Venture Vision 360 will strive to timely communicate with Customer about the progress of the onboarding process and any additional information needed by Venture Vision 360 to complete the onboarding process.
Access to Information and Accounts
Venture Vision 360’s Services are dependent on the timely delivery, availability, quality, and completeness of the information Customer provides to Venture Vision 360. As such, Venture Vision 360 may require and request access to certain documents, accounts, information, and/or people concerning the Customer on an as-needed basis. If the information requested by Venture Vision 360 is not provided in a timely manner, or is incomplete or unusable, the delivery of the Services may be impeded and, as such, Venture Vision 360 reserves the right to delay or suspend Services or Terminate this Engagement. Customer acknowledges and agrees that Venture Vision 360 will not be able to provide the Services unless Customer provides accurate, timely, and complete information, as requested by Venture Vision 360.
Customer Duties: Policies, Fraud, Illegal acts, and Compliance
Customer is solely responsible for adopting sound accounting policies, for maintaining an adequate and efficient accounting system, for safeguarding assets, for authorizing transactions and for retaining supporting documentation for such transactions, and for devising a system of internal controls that will, among other things, help assure the preparation of proper financial statements. Furthermore, Customer is solely responsible for management decisions and functions, for designating competent individuals to oversee any of the Services that Venture Vision 360 provides, and for evaluating the adequacy and results of those Services.
Customer is solely responsible for the design and implementation of programs and controls to prevent and detect fraudulent practices, and shall inform Venture Vision 360 about all known or suspected fraud affecting the Customer including, but not limited to, instances of fraud involving (a) management (b) employees who have significant roles in internal control, and © others where the fraud could have a material effect on the financial statements. Customer shall immediately inform Venture Vision 360 if Customer is, or becomes, aware of any allegations of fraud or suspected fraud affecting the Customer.
Customer is solely responsible for compliance with all laws and regulations, whether federal, state, local, foreign or otherwise, applicable to Customer’s business. Venture Vision 360 may offer advice to Customer that may be affected by federal, state or local laws and/or regulations. Customer understands that Venture Vision 360 is not a law firm and does not give legal advice. Venture Vision 360 recommends that Customer consult its legal advisors and Venture Vision 360 will work with these legal advisors as appropriate. Venture Vision 360 may also offer advice that may be related to domestic or international capital markets. Customer understands that Venture Vision 360 is not a broker/dealer in securities or an investment bank. Venture Vision 360 recommends that Customer consult its investment banking, securities, and other professional advisors and, to the extent that is appropriate, Venture Vision 360 will work with these advisors.
The Services do not include procedures designed to discover fraud, illegal acts, or other irregularities. Venture Vision 360 is not responsible for IRS disallowance of doubtful deductions or deductions unsupported by adequate documentation nor for resulting taxes, penalties, and/or interest resulting from this. During the performance of Services under the Engagement, Venture Vision 360 may identify relevant best practices and recommend actions regarding compliance issues, milestones, and/or deadlines, and Venture Vision 360 shall inform the Customer of such relevant best practices or such recommended actions; provided, however, that it is Customer’s sole responsibility to ensure their implementation. Venture Vision 360 will use commercially reasonable efforts to inform Customer of any material errors, evidence of fraud, illegal acts that may have occurred (unless they are clearly inconsequential) based solely on the information that Customer has provided to Venture Vision 360, or deficiencies in accounting policies and procedures, including internal controls that come to Venture Vision 360’s attention during the performance of Services.
Term & Termination
This Engagement starts when this Engagement has been fully executed by both Parties, which is expected to occur on October 1, 2020. We will not deal with earlier periods unless you specifically ask us to do so and we agree in writing. This Engagement shall remain in full force and effect until otherwise modified as provided herein, by written consent of the Parties or until terminated in accordance with the provisions herein (such period, the “Term “). If not terminated in accordance with the provisions herein, this Engagement shall automatically renew upon the end of the then-current Term for an additional twelve (12) month Term.
Notwithstanding the foregoing, it is Venture Vision 360’s policy to initiate renewal and/or revision of the Engagement on an annual basis.
Either Party may terminate the Engagement (“Termination”) at any time without cause by written notice to the other Party, in which case, Customer shall pay any and all amounts incurred by and due to Venture Vision 360 for Services provided prior to the effective date of Termination. If Venture Vision 360 elects to terminate the Engagement based on nonpayment of fees owed to Venture Vision 360 under this Engagement, Venture Vision 360’s sole responsibility will be to complete the Services for the time period(s) and or project(s) for which payment has been received, which may be prior to the date of Termination.
Upon Termination of this Engagement, any accrued or ongoing rights or obligations of the Parties shall survive such Termination, unless otherwise agreed in writing. Such obligations and rights include, but are not limited to, provisions for payment of fees for Services, reimbursements for expenses, confidential information, dispute resolution, risk of data loss, Warranty Disclaimer, limitation of liability, indemnification, and assignment.
Data Transfer and Return of Materials
Upon Termination or upon written request by Customer, Customer may request that Venture Vision 360 transfers Customer Data (as defined below) to a new vendor or software platform (such transfer, the “Data Transfer”) and/or return or destroy all physical copies of Customer Data in its possession. Such Customer Data may include the contents of third-party SaaS platforms or services, for which Venture Vision 360 has no responsibility to transfer. Venture Vision 360 will use commercially reasonable efforts to support the Data Transfer upon request by Customer, but shall not be required to do so; and Customer agrees to pay Venture Vision 360, in advance, for the reasonable fees associated with such Data Transfer and related work. Unless Customer notifies Venture Vision 360 in writing within five (5) business days of Termination of the desire to complete a Data Transfer, Customer agrees that Venture Vision 360 may delete all Customer Data in its possession following thirty (30) days from the date of Termination. “Customer Data” means (i) any information provided to Venture Vision 360 by Customer, including, but not limited to original source documents such as bank statements, receipts, or loan statement , and (ii) any work product delivered to Customer by Venture Vision 360 for which Venture Vision 360 has been paid.
Upon Termination, Venture Vision 360 will not be required to provide any Venture Vision 360 Property to Customer. “Venture Vision 360 Property” includes work product which was developed by Venture Vision 360 pursuant to this Engagement, including, but not limited to, processes and procedures related to Customer workflow, workpapers used to maintain accurate accounting, and notes regarding work completed.
Confidentiality
Venture Vision 360 shall use commercially reasonable efforts to protect the confidentiality of all information received by Venture Vision 360 from the Customer (“Customer Confidential Information”) in the performance of Services; provided, that this obligation shall not apply to information (i) known to Venture Vision 360 independently from Venture Vision 360’s relationship with the Customer, (ii) disclosed to Venture Vision 360 in good faith by a third party who, to the actual knowledge of Venture Vision 360, received such information without restriction on further disclosure, or (iii) independently developed by Venture Vision 360 without reference to Customer Confidential Information. In addition, and in the event that Venture Vision 360 is required by a governmental authority or by order of a court of competent jurisdiction to disclose any Customer Confidential Information, and unless otherwise prohibited by applicable law, Venture Vision 360 will give prompt written notice to the Customer of any such required disclosure so that, prior to such required disclosure, the Customer may seek an appropriate protective order or other similar remedy with respect to such information. Venture Vision 360 will reasonably cooperate with the Customer, at the Customer’s sole cost and expense, in its efforts to seek a protective order or other remedy. In the event that no such protective order or other remedy is obtained, Venture Vision 360 will furnish only that portion of the Customer Confidential Information that is legally required to be furnished. Upon Termination of this Agreement, at Customer’s request, Venture Vision 360 will return all Customer Confidential Information and copies thereof in its possession, provided that Venture Vision 360 may retain one copy of Customer Confidential Information pursuant to legal, regulatory or bona fide document retention policies and the requirement to return or disclose shall not apply to automated computer backup systems.
Notwithstanding anything to the contrary in this Agreement, Venture Vision 360 and its personnel shall be free to use and employ its and their general skills, know-how, and expertise, and to use, disclose and employ any generalized ideas, concepts, know-how, methods, techniques or skills gained or learned during the course of any assignment, so long as it or they acquire and apply such information without disclosure of any Customer Confidential Information.
Customer shall hold in confidence Venture Vision 360’s Confidential Information. “Venture Vision 360’s Confidential Information” includes all accounting methodology, pricing structures, business strategies, information regarding the skill of its personnel, and all other information reasonably known or understood to be confidential; provided, that this obligation shall not apply to information (i) known to Customer independently from Customer’s relationship with the Venture Vision 360, (ii) disclosed by Venture Vision 360 to a third party without restriction on further disclosure, (iii) independently developed by Customer without reference to Venture Vision 360’s Confidential Information. In addition, and in the event that the Customer is required by a governmental authority or by order of a court of competent jurisdiction to disclose any of Venture Vision 360’s Confidential Information, and unless otherwise prohibited by applicable law, the Customer will give prompt written notice to Venture Vision 360 of any such required disclosure so that, prior to such required disclosure, Venture Vision 360 may seek an appropriate protective order or other similar remedy with respect to such information. Thee Customer will reasonably cooperate with Venture Vision 360, at Venture Vision 360’s sole cost and expense, in its efforts to seek a protective order or other remedy. In the event that no such protective order or other remedy is obtained, the Customer will furnish only that portion of Venture Vision 360’s Confidential Information that is legally required to be furnished.
Electronic Data Communication and Storage and Use of Third Party Administrative Services
In the interest of facilitating our Services to Customer, Customer hereby authorizes Venture Vision 360 to send data over the Internet, store electronic data via computer software applications hosted remotely on the Internet, and to allow Customer’s access to data through third-party vendors’ secured portals or clouds. Venture Vision 360 may use third-party service providers to store and transmit this data, such as providers of cloud storage, SaaS general ledger platform(s), SaaS accounting tools, and/or tax return preparation software. In using these data communication and storage methods, Venture Vision 360 employs measures designed to maintain data security. We use reasonable efforts to keep such communications and data access securely in accordance with our obligations under applicable laws and professional standards. We enter into agreements with our third-party vendors that obligate them to do the same. You acknowledge and agree that we have no control over the unauthorized interception or breach of any communications or data once it has been sent via electronic means or data that has been subject to unauthorized access, notwithstanding all reasonable security measures employed by us or our third-party vendors. You consent to our use of these electronic devices and applications and submission of confidential client information to third-party service providers during this Engagement.
Customer agrees that Venture Vision 360 may communicate with Customer via email transmission. Customer acknowledges that such communications may be intercepted, read, disclosed, or otherwise used or communicated by a third party, or may not be delivered to each of the parties to whom they are directed and only to such parties. Venture Vision 360 cannot, and does not, guarantee or warrant that emails or other electronic forms of communication from Venture Vision 360 will be properly delivered and read only by the intended recipient(s). Therefore, Venture Vision 360 hereby specifically disclaims, and Customer waives, any and all liability or responsibility of Venture Vision 360 for any interception or unintentional disclosure of emails transmitted by Venture Vision 360 in connection with the delivery of the Services and Venture Vision 360’s performance pursuant to this Engagement. Customer agrees that Venture Vision 360 shall have no liability for any loss or damage to any person or entity resulting from the use of electronic transmissions, including any consequential, incidental, direct, indirect, or special damages, such as loss of revenues or anticipated profits, or disclosure or communication of confidential or proprietary information, regardless of whether Venture Vision 360 has been advised in advance of such potential damages. Venture Vision 360 provides commercially reasonable secure, encrypted, communication methods for Customers.
Non-Solicitation
During the term of this Engagement and for a period of twelve (12) months following Termination, Customer shall not directly or indirectly engage the services of any person, whether as an employee or independent contractor or otherwise, who has at any time during this Engagement been an employee of, or consultant to, Venture Vision 360. Upon any breach of this clause, Customer shall promptly pay Venture Vision 360, as liquidated damages, and not as a penalty, an amount equal to fifty percent (50%) of such person’s projected first year compensation, including salary, bonus, and any other compensation payable to such person by the Customer.
Payment Terms
Customer agrees to pay fees to Venture Vision 360 in amounts of, and in accordance with, the terms specified in this Engagement. Fees which are agreed to be paid and are able to be collected via ACH or credit card per this Engagement shall be so executed and receipt of payment shall be provided to Customer. Fees which are to be invoiced and collected per the Billing Schedule shall be invoiced per the Billing Schedule and Venture Vision 360 will provide invoices to Customer for such payments. Any invoices for time and materials shall be payable by Customer within 15 days of Customer’s receipt of an invoice from Venture Vision 360. Customer agrees to pay all sales and use and similar taxes associated with the provision of Services under this Agreement, but excluding taxes on Venture Vision 360’s net income or employment of its personnel. If Customer claims a tax exemption, Customer must provide Venture Vision 360 with valid tax exemption certificates.
If Customer requests that Venture Vision 360 provide any services beyond the scope of those specifically described in this Engagement (or other active Engagement between the Parties), Venture Vision 360 will bill, and Customer agrees to pay, fees for such additional time incurred by Venture Vision 360 at its standard hourly rates or, alternatively, Customer agrees to revise or amend this Engagement or execute a new engagement for the provision of such additional Services.
If Customer objects to any portion of an invoice, Customer shall notify Venture Vision 360 of the objection in writing within ten (10) calendar days of receipt of such invoice, and if such notice is not received before the end of such ten (10) day period, the Customer will be deemed to have accepted the entire invoice. Such notice shall identify the specific reasons for the objections and the amount in dispute. Parties agree to work diligently to promptly resolve any disputes subject to the Dispute Resolution provisions of this Engagement. Notwithstanding the foregoing, Customer agrees to immediately pay to Venture Vision 360 all undisputed amounts on any invoice.
To the extent that Customer has provided to Venture Vision 360 Customer’s bank account information or, if applicable, credit card information , Customer hereby authorizes Venture Vision 360 to initiate electronic withdrawals from such bank account in accordance with the bank account information Customer has provided or, if applicable, to charge the credit card provided to Venture Vision 360 by Customer. If a payment is returned for insufficient funds, Customer may be assessed an NSF fee by its bank or credit card company. Venture Vision 360 shall have no responsibility to reimburse Customer for any NSF or similar fees, and any such fees shall be borne solely by Customer. The authorization contained in this paragraph will remain in effect unless and until Customer provides and Venture Vision 360 receives seven (7) days’ prior written notice to terminate such authorization.
Venture Vision 360 reserves the right to immediately suspend the provision of Services and/or terminate this Engagement in the event that Customer’s invoices are not paid in accordance with the terms of this Engagement.
Warranty Disclaimer; Limitation of Liability & Indemnification
The Services are provided on an “AS-IS” basis. To the extent permissible by applicable law, Venture Vision 360 disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose, or non-infringement of intellectual property. Venture Vision 360 makes no representations or warranties that the Services will meet Customer’s requirements, nor does Venture Vision 360 make any representation or warranty as to the results that may be obtained from the use of the Services. Venture Vision 360 makes no representations or warranties of any kind, express or implies, as to the Services or the information, content, materials, or products delivered pursuant to this Engagement.
Under no circumstance and under no legal or equitable theory, whether in tort, contract, negligence, strict liability or otherwise, shall Venture Vision 360 or any of its affiliated companies, or any of their respective employees, directors, officers, agents, vendors or suppliers be liable to Customer or to any other person for any indirect, special, incidental or consequential losses or damages of any nature arising out of or in connection with the Services or for any breach of security associated with the transmission of sensitive information to or from the Customer or for any information obtained pursuant to this Engagement, including, without limitation, damages for lost profits, loss of goodwill, loss or corruption of data, work stoppage, accuracy of results, or computer failure or malfunction, even if an authorized representative of Venture Vision 360 has been advised of or should have known of the possibility of such damages.
Venture Vision 360’s total cumulative liability for any and all claims in connection with this Engagement shall be limited to the lesser of (a) actual direct damages or (b) the aggregate amount of fees paid by Customer to Venture Vision 360 for Services under this Engagement over the six (6) months prior to the date that the claim was brought. No individual who was an officer, director, employee or agent of Venture Vision 360 at any time during the term of this Engagement (collectively, “Representatives”) shall have any liability hereunder nor shall any affiliate of Venture Vision 360 or its Representatives have any liability hereunder. Customer agrees and acknowledges that the foregoing limitations of liability are an essential basis of the bargain and that Venture Vision 360 would not provide the Services absent such limitation.
Customer agrees to defend, indemnify and hold harmless Venture Vision 360, its affiliates and its officers, employees and directors (collectively, “Venture Vision 360 Persons”) from and against any claims, losses, liabilities, costs or expenses (including, without limitation, reasonable fees and expenses of attorneys, accountants and other professional advisors) directly or indirectly relating to, resulting from, or arising out of the performance of its duties hereunder. To the extent that Venture Vision 360 is required to collect or prepare documents, make depositions, testify in, or otherwise prepare for legal proceedings as a result of claims by parties other than Venture Vision 360 against Customer (collectively, “Claim-Related Activities”), Customer agrees to compensate Venture Vision 360 at Venture Vision 360’s normal rates for the time Venture Vision 360 spends in Claim-Related Activities, including reasonable travel expenses. Notwithstanding the foregoing, Customer shall have no obligation to indemnify Venture Vision 360 Persons or compensate Venture Vision 360 Persons for Claim-Related Activities with respect to any performance if a court of competent jurisdiction from which no appeal can be taken finds that Venture Vision 360 Persons acted in bad faith or engaged in willful misconduct in such performance.
Dispute Resolution
Governing Law. This Engagement shall be governed by, and construed in, accordance with the laws of the State of Rhode Island, without resort to the state’s conflict of laws rules, and Customer and Venture Vision 360 consent to the jurisdiction of the courts of Providence County in Rhode Island for any matter concerning this Engagement.
Venture Vision 360 seeks to conduct business and service Customers needs in a manner that achieves or exceeds expectations. Any dispute that arises under this Engagement shall be resolved under the following procedures:
- Statement: The Party claiming to be aggrieved shall furnish to the other Party a written statement of the grievances with inclusion of specific contractual provisions alleged to have been violated, a factual statement describing the violation and the relief requested or proposed.
- Informal Negotiations: The Parties agree to use reasonable efforts during the fifteen (15) day period following delivery of the written statement of grievances to resolve any dispute in a timely fashion through informal discussions and negotiations.
- Non-binding mediation: During the informal negotiations, the other Party shall respond in writing to the Party claiming to be aggrieved setting forth its factual statement and any proposed solution. If the Parties cannot come to a resolution of grievances during such fifteen (15) day period, the Parties shall submit the dispute to non-binding mediation in Providence, RI before a mediator to be jointly selected by the Parties. If a mediator cannot be agreed upon, each Party shall nominate a mediator and such mediators selected by the Parties shall select a third mediator to attempt to resolve the dispute.
- Arbitration: For any dispute that mediation does not produce an acceptable resolution to each Party, the Parties agree to resolve any such dispute via final and binding arbitration in Providence, RI before a single arbitrator under the Commercial Arbitration Rules of the American Arbitration Association (the “Rules”) ; provided, however, a Party will not be required to use the foregoing dispute resolution procedures regarding any dispute where a Party is seeking purely injunctive or other equitable relief. The arbitrator shall be mutually selected by parties hereto or, if no arbitrator is mutually selected, shall be selected by the procedures set forth in the Rules. The arbitrator may construe or interpret this Engagement but may not vary or ignore any of the terms of this Engagement. Any issue concerning the extent to which any dispute is subject to arbitration, or concerning the applicability, interpretation, or enforceability of these procedures, including any contention that all or part of these procedures are invalid or unenforceable, will be resolved by the arbitrator. All aspects of the arbitration will be treated as confidential.
Arbitration shall be the exclusive final remedy for any dispute between the parties, and the parties agree that no dispute shall be submitted to arbitration where the Party claiming to be aggrieved has not completed the steps provided for in this Dispute Resolution section.
Additional Terms
Any waiver by Venture Vision 360 of a breach of any provision of these Terms shall not operate or be construed as a waiver of any subsequent breach hereof. If any provision of these Terms is held to be preempted by or invalid under any applicable law, such provision will be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of these Terms. These Terms will be binding upon, and enforceable against, Customer and Customer’s officers, directors, and employees. Customer may not assign this Engagement without Venture Vision 360’s prior written consent. Venture Vision 360 may assign its rights and obligations under this Engagement to any affiliate or successor organizations without the Customer’s consent. Any notice required or permitted to be given hereunder shall be in writing and shall be effective upon delivery to the address of the recipient Party set forth at the head of this Agreement. Invoices and routine communications may be sent by first-class mail, postage prepaid, or by electronic mail, to such locations or persons as either Party may designate in writing from time to time. Either Party may change its address for the receipt of notices, requests or other communications hereunder by written notice duly given to the other Party.
If Venture Vision 360 personnel are unable to be present to provide the Services as a result of transportation delays or are unavailable due to sickness or injury; or either party is affected by any event beyond its reasonable control, including fire, explosion, flood, or other acts of God; acts, regulations, or laws of any government; war, terrorist acts or civil commotion; strike, lock-out or labor disturbances; or failure of public utilities or common carriers which would make provision of the services promised by Venture Vision 360 impractical or impossible (a “Force Majeure Event”), then the provisions of this section may be invoked provided that the affected Party gives immediate written notice to the other Party of the Force Majeure Event and that the affected Party exercises all reasonable efforts to mitigate the effects of the Force Majeure Event as soon as and to the extent practicable. If efforts to mitigate the Force Majeure Event are not sufficient to allow the services promised by Venture Vision 360 to be delivered as scheduled, then (i) the Parties shall use reasonable efforts to reschedule such Services at a mutually convenient time, and (ii) absent a mutually acceptable rescheduling, at the option of either Party, Venture Vision 360 shall return any deposit or prepaid amounts for Services that have not been rendered at the point of the Force Majeure Event and this Engagement may be terminated at either Party’s written request without any further obligation of Venture Vision 360 to provide the Services or Customer to pay for such Services (except in each case that Venture Vision 360 would retain amounts or be compensated for Services to the extent Services were actually performed prior to the Force Majeure Event and for non-cancellable commitments to third parties, such payment for non-cancellable airplane tickets, to the extent such payments were made by Venture Vision 360 prior to the Force Majeure Event).
In order to avoid any ambiguity, the Parties agree that any previous communications or proposals, whether written or oral, regarding the subject matter herein (including any documents and schedules attached hereto), are superseded by the terms of this Engagement (including these Terms and other documents and schedules attached hereto, each as may be amended from time to time), and this Engagement (including these Terms and other documents and schedules attached hereto, each as may be amended from time to time) contains the entire understanding between the Parties relating to the subject matter herein. This Engagement (including these Terms and other documents and schedules attached hereto) may be modified only by a written instrument signed by an authorized representative of each Party, and any such modification shall only amend the subject matter thereto, with the rest of the terms of this Engagement (including these Terms and other documents and schedules attached hereto) left unmodified and in full force and effect. Any terms or conditions of this Engagement which by their express terms extend beyond termination of this Engagement or which by their nature should so extend shall survive and continue in full force and effect after any termination of this Engagement.