Overview

 

This addendum to the engagement letter describes our standard terms and conditions (“Terms and Conditions”) related to our provision of services to you. This addendum, and the accompanying engagement letter, comprise your agreement with us (“Agreement”). If there is any inconsistency between the engagement letter and this Terms and Conditions Addendum, the engagement letter will prevail to the extent of the inconsistency.

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For the purposes of this General Terms and Conditions Addendum, any reference to “firm,” “we,” “us,” or “our” is a reference to Winding Trail Accounting, LLC, and any reference to “you,” or “your” is a reference to the party or parties that have engaged us to provide services. References to “Agreement” mean the engagement letter or other written document describing the scope of services, any other attachments incorporated therein, and this Terms and Conditions Addendum. 

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Agreed Upon Scope of Work

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Winding Trail Accounting, LLC shall be obligated only for the services, work product and deliverables specified in the Letter, and only for changes in such scope that are set forth in writing and duly executed by the parties hereto. Unless expressly provided for in the Letter, Winding Trail Accounting, LLC’s services do not include giving testimony, appearing or participating in discovery proceedings, administrative hearings, court, or other legal or regulatory inquiries or proceedings and, in the event Winding Trail Accounting, LLC later agrees to perform such services, Winding Trail Accounting, LLC will charge and Client shall pay Winding Trail Accounting, LLC’s customary fee for such services.

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Additionally, unless expressly provided for in the Letter, Winding Trail Accounting, LLC’s services do not include compiling, reviewing, and/or auditing your financial statements and, in the event Winding Trail Accounting, LLC later agrees to perform such services, Winding Trail Accounting, LLC will charge and Client shall pay Winding Trail Accounting, LLC’s agreed upon fee for such services. A separate engagement letter will be required prior to rendering such services.

 

Period Covered

 

This engagement letter covers the period beginning on the date the described services begin and ending on the date all such services have been completed or with a cancellation notice by either party. Except where a separate engagement letter is used, the terms of the Letter and these Terms will apply to any such additional work we are asked to perform.

 

Each of us may terminate this agreement by giving not less than 15 days notice in writing to the other party except where you fail to cooperate with us or we have reason to believe that you have provided us or the IRS with misleading information, in which case we may terminate this agreement immediately. Termination will be without prejudice to any rights that may have accrued to either of us prior to termination.

 

Billing & Payment Terms

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Our firm’s practice requires payment of the retainer upon execution of this Agreement. You agree that the retainer will be earned as our professional time to complete the engagement is incurred. The retainer will be applied to the final billing, and any unused balance will be refunded at the end of the engagement.

 

We will bill you for our professional fees and out-of-pocket costs. Payment is due within 30 days of the date on the billing statement. If payment is not received by the due date, you will be assessed interest charges of 1% per month (12% annual) on the unpaid balance. You have thirty (30) days from the invoice date to review the invoice and to communicate to us, in writing, any disagreement with the charges, after which you waive the right to contest the invoice.

 

All outstanding invoices must be paid prior to the release of the deliverable(s) specified in the Agreement. We do not release incomplete deliverables.

 

We reserve the right to suspend or terminate our work for non-payment of fees. In the event that work is discontinued, either temporarily or permanently, as a result of delinquent payment, we shall not be liable for any damages you may incur as a result of the work stoppage.

 

Termination and Withdrawal

 

We reserve the right to withdraw from the engagement without completing services for any reason, including, but not limited to, non-payment of fees, your failure to comply with the terms of this Agreement, or as we determine professional standards require. If our work is suspended or terminated, you agree that we will not be responsible for your failure to meet governmental and other deadlines, or for any liability, including but not limited to, penalties or interest that may be assessed against you resulting from your failure to meet such deadlines. 

 

If this Agreement is terminated before services are completed, you agree to compensate us for the services performed and expenses incurred through the effective date of termination.

 

Unanticipated Services

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Only the services which are listed in the attached schedules are included within the scope of our instructions. If there is additional work that you wish us to carry out which is not listed in the schedule, any additional work will be quoted to you before the commencement of said additional work. Once the scope of the additional work is agreed upon, we will issue an additional or updated letter of engagement via our online proposal system, and will ask you to sign the new agreement before we commence the new work.

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Furthermore, Client will agree that if an unanticipated need arises (such as an audit, an amended tax return or a personal financial statement required as part of a loan agreement), this additional work will be performed only after arriving at a mutually agreed-upon price and a Change of Service Request is accepted with a digital signature.

 

Cooperation and Participation

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While Winding Trail Accounting, LLC may from time to time suggest various options that may be available to Client and further give its professional evaluation of each of these options, Client must make the ultimate decision as to which, if any, of these options to implement. Client shall be solely responsible for applying independent business judgment with respect to Winding Trail Accounting, LLC’s services, work product and/or deliverables (including decisions regarding implementation or other further course(s) of action) and shall be solely and exclusively responsible for such decisions. Winding Trail Accounting, LLC shall be entitled to rely on all decisions and approvals of Client (and its counsel). Except as specifically provided in the Letter, Winding Trail Accounting, LLC shall be entitled to rely on the accuracy and completeness of all information provided by Client, and Winding Trail Accounting, LLC has no duty to verify the accuracy or completeness of information provided by Client.

 

Access to Resources and Information

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Unless specified herein as the responsibility of Winding Trail Accounting, LLC to provide, Client shall obtain for Winding Trail Accounting, LLC, on a timely basis, any internal and third-party permissions, licenses or approvals that are required for Winding Trail Accounting, LLC to perform the services contemplated hereunder (including the use of any necessary software or data). Client shall also provide Winding Trail Accounting, LLC with such information, signoffs and assistance as may be necessary for Winding Trail Accounting, LLC to perform the Engagement or as Winding Trail Accounting, LLC may reasonably request.

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Electronic Data Communication and Storage

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In the interest of facilitating our services to you, we may send data over the Internet, temporarily store electronic data via computer software applications hosted remotely on the Internet, or utilize cloud-based storage. Your confidential electronic data may be transmitted or stored using these methods. In using these data communication and storage methods, our firm employs measures designed to maintain data security. We use reasonable efforts to keep such communications and electronic data secure in accordance with our obligations under applicable laws, regulations, and professional standards.

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You recognize and accept that we have no control over the unauthorized interception or breach of any communications or electronic data once it has been transmitted or if it has been subject to unauthorized access while stored, notwithstanding all reasonable security measures employed by us. You consent to our use of these electronic devices and applications during this engagement.

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Electronic (Email) Communications

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In connection with this engagement, we may communicate with you or others via email transmission. As emails can be intercepted and read, disclosed, or otherwise used or communicated by an unintended third party, or may not be delivered to each of the parties to whom they are directed and only to such parties, we cannot guarantee or warrant that emails from us will be properly delivered and read only by the addressee. Therefore, we specifically disclaim and waive any liability or responsibility whatsoever for interception or unintentional disclosure of emails transmitted by us in connection with the performance of this engagement. 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, 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.

 

Client Portals

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To enhance our services to you, we will utilize various online portal providers including, but not limited to, Intuit Practice Management Powered by Karbon, Box.com, Intuit, Microsoft, Uncat and/or Google, a collaborative, virtual workspace in a protected, online environment. The portal permits real-time collaboration across geographic boundaries and time zones and allows Winding Trail Accounting, LLC and you to share data, engagement information, knowledge, and deliverables in a protected environment. In order to use the portal, you may be required by the provider of the portal to execute a client portal agreement and agree to be bound by the terms, conditions and limitations of such agreement. You agree that we have no responsibility for the activities of each portal service provider and agree to indemnify and hold us harmless with respect to any and all claims arising from or related to the operation of the online portal.

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Winding Trail Accounting, LLC is not a host for any of your information. You are responsible for maintaining your own copy of this information. We do not provide back-up services for any of your data or records, including information we provide to you. Portals are utilized solely as a method of transferring data and are not intended for the storage of your information. Information on a portal may be deleted by Winding Trail Accounting, LLC.

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If you decide to transmit your confidential information to us in a manner other than a secure portal, you accept responsibility for any and all unauthorized access to your confidential information. If you request that we transmit confidential information to you in a manner other than a secure portal, you agree that we are not responsible for any liability, including but not limited to, (a) any loss or damage of any nature, whether direct or indirect, that may arise as a result of our sending confidential information in a manner other than a secure portal, and (b) any damages arising as a result of any virus being passed on or with, or arising from any alteration of, any email message.

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Third-Party Service Providers or Subcontractors 

 

To enhance our availability to meet your professional service needs while maintaining service quality and timeliness, we may use a third-party service provider to assist us. This may include provision of your confidential information to the third-party service provider. We require our third-party service providers to have established procedures and controls designed to protect client confidentiality and maintain data security. As the paid provider of professional services, our firm remains responsible for exercising reasonable care in providing such services, and our work product will be subjected to our firm's customary quality control procedures.

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By accepting the terms and conditions of our engagement, you are providing your consent and authorization to disclose your confidential information to a third-party service provider, if such disclosure is necessary to deliver professional services or provide support services to our firm.

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Independent Contractor

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When providing services to your company, we will be functioning as an independent contractor and in no event will we or any of our employees be an officer of you, nor will our relationship be that of joint venturers, partners, employer and employee, principal and agent, or any similar relationship giving rise to a fiduciary duty to you.

Our obligations under this agreement are solely obligations of Winding Trail Accounting, LLC, and no partner, principal, employee or agent of Winding Trail Accounting, LLC shall be subjected to any personal liability whatsoever to you or any person or entity.​

 

Records Management

 

Record Retention and Ownership

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We will return any original records and documents you provide to us on or before the conclusion of the engagement. Our copies of your records and documents are solely for our documentation purposes and are not a substitute for your own records and do not mitigate your record retention obligations under any applicable laws or regulations. You are responsible for maintaining complete and accurate books and records, which may include financial statements, schedules, tax returns and other deliverables provided to you by us. If we provide deliverables or other records to you via an information portal, you must download this information within 30 days. Professional standards preclude us from being the sole repository of your original data, records, or information .

 

Workpapers and other documents created by us are our property and will remain in our control. Copies are not to be distributed without your written request and our prior written consent. Our workpapers will be maintained by us in accordance with our firm’s record retention policy and any applicable legal and regulatory requirements. A copy of our record retention policy is available upon request.

 

Our firm destroys workpaper files after a period of seven years, after which time these items will no longer be available. Catastrophic events or physical deterioration may result in damage to or destruction of our firm’s records, causing the records to be unavailable before the expiration of the retention period, as stated in our record retention policy.

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Working Paper Access Requests by Regulators and Others

State, federal and foreign regulators may request access to or copies of certain workpapers pursuant to applicable legal or regulatory requirements. Requests also may arise with respect to peer review, an ethics investigation, the sale of your organization, or the sale of our accounting practice. If requested, access to such workpapers will be provided under the supervision of firm personnel. 

 

Regulators may request copies of selected workpapers to distribute the copies or information contained therein to others, including other governmental agencies.

 

If we receive a request for copies of selected workpapers, provided that we are not prohibited from doing so by applicable laws or regulations, we agree to inform you of such request as soon as practicable. You may, within the time permitted for our firm to respond to any request, initiate such legal action as you deem appropriate, at your sole expense, to attempt to limit the disclosure of information. If you take no action within the time permitted for us to respond, or if your action does not result in a judicial order protecting us from supplying requested information, we may construe your inaction or failure as consent to comply with the request.

 

If we are not a party to the proceeding in which the information is sought, you agree to reimburse us for our professional time and expenses, as well as the fees and expenses of our legal counsel, incurred in responding to such requests.

 

Summons or Subpoenas for Client’s Records and Information

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At any time during or after our Engagement, should Winding Trail Accounting, LLC receive a subpoena from a Third Party seeking production of Client’s records or confidential information, or testimony relating to Winding Trail Accounting, LLC’s Engagement, Winding Trail Accounting, LLC will, to the extent permitted by law, notify Client using the last contact information for Client known to Winding Trail Accounting, LLC. Upon such notification, should Client wish to take action to protect its records and/or its information from production in compliance with the subpoena, it shall be Client’s obligation to do so in compliance with applicable law, at Client’s expense, using counsel of Client’s choice. Irrespective of Client’s decision regarding what action, if any, it intends to take to protect its records and information, Winding Trail Accounting, LLC shall have the right to engage its own counsel to assist and advise Winding Trail Accounting, LLC in coordinating with Client and/or Client’s counsel in this regard, and/or in responding to the subpoena. Client shall reimburse Winding Trail Accounting, LLC, upon receipt of an appropriate invoice, for all of Winding Trail Accounting, LLC’s internal and external costs and expenses in responding to any subpoena for Client’s records, and/or providing testimony pursuant to such subpoena, including Winding Trail Accounting, LLC’s reasonable and customary fees for such services, as well as its internal costs (employee time and expenses), external costs (copy services or other vendors), and reasonable attorneys’ fees.

 

Confidentiality

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Winding Trail Accounting, LLC shall maintain the confidentiality of Client information, which is of a confidential nature, using the same degree of care it uses in maintaining its own confidential information. Nothing herein shall preclude Winding Trail Accounting, LLC from disclosing confidential Client information in response to a validly issued and enforceable subpoena or as otherwise required by law, or from disclosing confidential Client information to Winding Trail Accounting, LLC’s attorneys, advisors, insurers, or agents who agree to maintain the confidentiality of such information, with or without notice to Client.

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In the course of providing professional services to Client in connection with this engagement, Winding Trail Accounting, LLC may require the assistance of third party professional service providers with specialized capabilities or expertise. Winding Trail Accounting, LLC enters into confidentiality agreements with such third party professional service providers to ensure that confidential information of its clients is fully protected from loss or misuse. In the event Winding Trail Accounting, LLC is unable to secure an appropriate confidentiality agreement, Client will be asked to provide its consent prior to the sharing of its confidential information with the third-party professional service provider.

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Except as otherwise specifically provided herein, Client shall at no time disclose any of Winding Trail Accounting, LLC’s services, fees, work product, deliverables and other confidential material, including but not limited to internally developed financial models, or Winding Trail Accounting, LLC’s role in the Engagement, to any third party (except to a government agency, to the extent such filing is an agreed objective of the Agreement, or as otherwise legally compelled) without Winding Trail Accounting, LLC’s prior written consent in each case. Client’s use of Winding Trail Accounting, LLC’s services, work product or deliverables hereunder (except for copies of filed tax returns) shall in any event be restricted to the stated purpose, if any, in the Letter and otherwise to Client’s internal business use only. Client and Winding Trail Accounting, LLC each retains the right in any event to use the ideas, concepts, techniques, industry data and know-how used or developed in the course of the Engagement. Except as instructed otherwise in writing, each party may assume that the other approves of properly addressed fax, email (including email exchanged via Internet media) and voicemail communication of both sensitive and nonsensitive documents and other communications concerning the Engagement, as well as other means of communication used or accepted by the other.

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Notwithstanding anything herein to the contrary, (i) no term of the Agreement is intended to be, and shall not be construed to be, a condition of confidentiality as such term is used in Sections 6011, 6111 and 6112 of the Internal Revenue Code of 1986, as amended (“IRC”), the regulations thereunder and/or Section 10.35 of Treasury Department Circular 230 (“Circular 230”), (ii) Client is hereby authorized to disclose to any and all persons, without any limitation of any kind, any aspect of any entity, plan, arrangement or transaction Winding Trail Accounting, LLC introduces, addresses or recommends, or with respect to which Winding Trail Accounting, LLC provides advice, consultation or services pursuant to the Agreement, it being Client’s duty to ascertain whether any additional authorization from any other person or entity is necessary or desirable, and (iii) there is no limitation imposed herein on any person or entity on disclosure of the tax treatment, tax structure or tax strategy of any transaction that is the subject of written advice (as defined in Circular 230) provided by Winding Trail Accounting, LLC pursuant to the Agreement.

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Winding Trail Accounting, LLC may be required to comply with certain peer review requirements in order to maintain its professional licensing. In complying with these peer review requirements certain confidential information may be disclosed to the reviewer. These peer reviews are only conducted by other qualified professionals who are subject to maintaining the confidentiality of information disclosed in the course of the review. Client acknowledges that these confidential disclosures by Winding Trail Accounting, LLC are not a violation of Winding Trail Accounting, LLC’s obligation to maintain the confidentiality of information.

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Newsletters and Similar Communications

 

We may send newsletters, emails, explanations of technical developments or similar communications to you. These communications are of a general nature and should not be construed as professional advice. We may not send all such communications to you. These communications do not constitute a client relationship with you, nor do they constitute advice or an undertaking on our part to monitor issues for you.

 

Federally Authorized Practitioner – Client Privilege

 

Internal Revenue Code §7525, Confidentiality Privileges Related to Taxpayer Communication, provides a limited confidentiality privilege applying to tax advice embodied in taxpayer communications with federally authorized tax practitioners in certain limited situations.

 

This privilege is limited in several important respects. For example, the privilege may not apply to your records, state tax issues, state tax proceedings, private civil litigation proceedings, or criminal proceedings.

 

While we will cooperate with your reasonable written instructions with respect to the privilege, asserting the privilege is solely your responsibility, including involving legal counsel as you deem it necessary. Inadvertent disclosure of otherwise privileged information may result in a waiver of the privilege. Please contact us immediately if you have any questions or need further information about this federally authorized practitioner-client privilege.

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Disclaimer of Legal and Investment Advice

 

Our services under this Agreement do not constitute legal or investment advice unless specifically engaged to provide investment advice in the Engagement Objective and Scope section of this Agreement. We recommend that you retain legal counsel and investment advisors to provide such advice.

 

Referrals

 

In the course of providing services to you, you may request referrals to products or professionals such as attorneys, brokers, or investment advisors. We may identify professional(s) or product(s) for your consideration. However, you are responsible for evaluating, selecting, and retaining any professional or product and determining if the professional or product meets your needs. You agree that we will not oversee the activities of and have no responsibility for the work product of any professional or the suitability of any product we refer to you or that you separately retain. Further, we are not responsible for any services we perform that fail to meet the intended outcomes as a result of relying on the services of other professionals or products you may retain.

 

Limitations on Oral and Email Communications

 

We may discuss with you our views regarding the treatment of certain items or decisions you may encounter. We may also provide you with information in an email. Any advice or information delivered orally or in an email (rather than through a memorandum delivered as an email attachment) will be based upon limited research and a limited discussion and analysis of the underlying facts. Additional research or a more complete review of the facts may affect our analysis and conclusions.

 

Due to these limitations and the related risks, it may or may not be appropriate to proceed with a decision solely on the basis of any oral or email communication from us. You accept all responsibility, except to the extent caused by our gross negligence or willful misconduct, for any liability, including but not limited to additional tax, penalties or interest resulting from your decision (i) not to have us perform the research and analysis necessary to reach a more definitive conclusion and (ii) to instead rely on an oral or email communication. The limitation in this paragraph will not apply to an item of written advice that is a deliverable of a separate engagement. If you wish to engage us to provide formal advice on a matter on which we have communicated orally or by email, we will confirm this service in a separate agreement.

 

Brokerage, Investment Advisory or Cryptocurrency Statements

 

If you provide our firm with copies of brokerage, investment advisor, or cryptocurrency statements and/or read-only access to your accounts, we will use the information solely for the purpose described in the Engagement Objective and Scope section of this Agreement. We will rely on the accuracy of the information provided in the statements and will not undertake any action to verify this information. We will not monitor transactions, investment activity, provide investment advice, or supervise the actions of the entity or individuals entering into transactions or investment activities on your behalf. We recommend that you receive and carefully review all statements upon receipt, and direct any questions regarding account activity to your banker, broker or investment advisor.

 

Disclaimer of Legal and Investment Advice

 

Our services under this Agreement do not constitute legal or investment advice unless specifically engaged to provide investment advice in the Engagement Objective and Scope section of this Agreement. We recommend that you retain legal counsel and investment advisors to provide such advice.​

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Electronic Signatures and Counterparts

 

Each party hereto agrees that any electronic signature is intended to authenticate a written signature, shall be valid, and shall have the same force and effect as a manual signature. For purposes hereof, “electronic signature” includes, but is not limited to, a scanned copy of a manual signature, an electronic copy of a manual signature affixed to a document, a signature incorporated into a document utilizing touchscreen capabilities, or a digital signature. Documents

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Management Dishonesty

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While Winding Trail Accounting, LLC will advise Client if Winding Trail Accounting, LLC discovers errors or irregularities, Client understands and agrees that Client cannot rely on Winding Trail Accounting, LLC to detect director, officer, management, employee, agent, or advisor dishonesty, including, without limitation, embezzlement and/or fraud, unless specifically set forth in the Letter.

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Accuracy of Information Provided

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Our engagement is limited to the period and the professional services indicated herein for the specified period. We will rely on the accuracy and completeness of the documents and information you provide to us. Accordingly, our engagement cannot be relied upon to disclose errors, fraud, or other illegal acts that may exist. However, it may be necessary to ask you for clarification of some of the information you provide, and we will inform you of any material errors, fraud or other illegal acts that come to our attention, unless they are clearly inconsequential. In addition, we have no responsibility to identify and communicate significant deficiencies or material weaknesses in your internal controls as part of this engagement, and our engagement cannot, therefore, be relied upon to make disclosure of such matters.

 

External Factors; Standards of Performance

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Client acknowledges that the Engagement will involve analysis, judgment and other performance from time to time in a context where the participation of Client or others is necessary, where answers are often  uncertain or unverifiable in advance and where facts and available information change with time. Accordingly, evaluation of Winding Trail Accounting, LLC’s performance of its obligations shall be based solely on its substantial conformance with any standards or specifications expressly set forth in the Agreement and all applicable professional standards, any such nonconformance (and applicability) to be clearly and convincingly shown. If there are any changes in the relevant laws, regulations, industry, market conditions or other circumstances, including in the Client’s own business practices, Winding Trail Accounting, LLC has no responsibility to advise Client of any such changes and Client acknowledges the need for it to re-evaluate Winding Trail Accounting, LLC’s preceding services, work product and deliverables. Winding Trail Accounting, LLC reserves the right, in whole or in part, to decline to perform certain tasks or withdraw from the Engagement entirely if information comes to Winding Trail Accounting, LLC’s attention indicating that performing such tasks could cause Winding Trail Accounting, LLC to be in violation of any applicable law, regulations or standards, to be in a conflict of interest or to suffer reputational damage.

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Affiliates

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If the Letter provides that Winding Trail Accounting, LLC’s services, work product or deliverables may pertain not only to Client but also to a parent, subsidiaries, affiliates, advisors, contractors, family members, related trusts, partnerships, partners, estates or foundations, such Affiliates shall be bound by the terms of the Agreement. Client shall, as may be requested by Winding Trail Accounting, LLC from time to time (including subsequent to completion of the Engagement), obtain written confirmation of their agreement to the terms of the Agreement.

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Limitation of Liability

 

THE LIABILITY OF WINDING TRAIL ACCOUNTING, LLC (INCLUDING ITS PARTNERS/MEMBER/SHAREHOLDERS, EMPLOYEES, AGENTS AND AFFILIATED COMPANIES) TO CLIENT (AND ANY PURPORTED THIRD-PARTY BENEFICIARIES, INCLUDING AFFILIATES) FOR ANY CLAIM OR DAMAGES (INCLUDING BUT NOT LIMITED TO INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL), WHETHER IN CONTRACT, STRICT LIABILITY, TORT (INCLUDING BUT NOT LIMITED TO WINDING TRAIL ACCOUNTING, LLC’S NEGLIGENCE OR FAULT, EXCEPT THAT THIS PROVISION DOES NOT PURPORT TO LIMIT LIABILITY FOR WINDING TRAIL ACCOUNTING, LLC’S INTENTIONAL/WILLFUL TORTS OR FOR ANY OTHER LIABILITIES FOR WHICH A LIMITATION OF LIABILITY IS PROHIBITED BY COLORADO LAW), OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM WINDING TRAIL ACCOUNTING, LLC’S SERVICES, WORK PRODUCT OR DELIVERABLES OR THE ENGAGEMENT GENERALLY, SHALL NOT EXCEED ALL FEES RELATED TO THE ENGAGEMENT PAID BY CLIENT TO WINDING TRAIL ACCOUNTING, LLC, EVEN IF WINDING TRAIL ACCOUNTING, LLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS OR DAMAGES.

 

Limitation of Damages

 

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, WINDING TRAIL ACCOUNTING, LLC SHALL NOT BE LIABLE FOR ANY LOST PROFITS, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY NATURE EVEN IF WE HAVE BEEN ADVISED BY YOU OF THE POSSIBILITY OF SUCH DAMAGES.

 

Indemnification of Winding Trail Accounting, LLC

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Client agrees to release, indemnify, and hold Winding Trail Accounting, LLC, its partners, officers, managers, personnel, agents, employees, affiliated companies, successors and assigns harmless from any liability and costs, including attorneys’ fees, resulting from knowing misrepresentations by management of Client. You further agree to indemnify us and our agents in respect of any claim (including any claim for negligence) arising out of any unauthorized disclosure of our advice and opinions, whether in writing or otherwise. Client’s obligation to indemnify shall survive until such time as all claims against Winding Trail Accounting, LLC are legally barred under all applicable statutes of limitation.

 

The following is applicable to audit and attest engagements only:

You agree to hold us harmless from any and all claims which arise from knowing misrepresentations to us, or the intentional withholding or concealment of information from us by your management. You also agree to indemnify us for any claims made against us by third parties, which arise from any of these actions by your management. The provisions of this paragraph shall apply regardless of the nature of the claim.

 

The following applies to non-attest engagements only:

Unless otherwise stated in the Agreement, you agree to indemnify, defend, and hold harmless Winding Trail Accounting, LLC and any of its partners, principals, shareholders, officers, directors, members, employees, agents or assigns with respect to any and all claims made by third parties arising from this engagement, regardless of the nature of the claim, and including the negligence of any party, excepting claims arising from the gross negligence or intentional acts of Winding Trail Accounting, LLC.

 

Insurance

 

Winding Trail Accounting, LLC shall, during the term of the engagement and for 1 year after termination of same by either you or us, maintain in full force and effect, accountants professional liability insurance coverage from an insurer or insurers licensed to conduct business in the state of Colorado. As of the policy effective date, such insurer or insurers shall be rated at least A- (Excellent), by A.M. Best with a Financial Size Category of Class VII or greater. Premiums for said insurance policy shall be paid by Winding Trail Accounting, LLC.

 

Independent Contractor Status

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Each party is an independent contractor with respect to the other and shall not be construed as having an employment, partnership, trustee or fiduciary relationship.

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No Exclusivity

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You hereby acknowledge and agree that nothing in this Agreement shall prohibit the Firm from starting or continuing to provide services similar to those outlined in the Letter to other clients or otherwise engaging in the Firm’s business activities.

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Assignments and Successors

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Neither party may assign any of its rights or benefits under the Agreement without the prior written consent of the other party. Subject to the preceding sentence, the Agreement will apply to, be binding in all respects upon, and inure to the benefit of the permitted successors, assigns, heirs, estates, and legal representatives of the parties. Notwithstanding the foregoing, Winding Trail Accounting, LLC may authorize and allow its affiliates and contractors to assist in performing the Engagement and to share in Winding Trail Accounting, LLC’s rights hereunder, provided any such party shall commit (as applicable) to be bound by the restrictions set forth in the Agreement.

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No Third-Party Rights

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Unless specifically set forth in the Letter, nothing expressed or referred to in the Agreement will be construed to give any person, other than the parties to the Agreement, any legal or equitable right, remedy, claim, benefit, priority or interest under or with respect to the Agreement or any provision of the Agreement. Except as specifically provided in the Letter, the Agreement and any services, work product or other deliverables hereunder are for the sole and exclusive benefit of the Client and its permitted successors and assigns, and neither Client nor Winding Trail Accounting, LLC intends for Winding Trail Accounting, LLC’s services to be used by or to provide any benefit or guidance to any other persons. The work product or services provided hereunder shall not be disclosed or disseminated to third parties or used for any purpose, other than as specifically set forth in the Letter, without Winding Trail Accounting, LLC’s prior written consent.

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Mediation

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If Client (including any purported third-party beneficiaries, including Affiliates) is dissatisfied with the quality or timeliness of Winding Trail Accounting, LLC’s services, or believes such services were in any way negligently performed, Client agrees to promptly notify Winding Trail Accounting, LLC in writing of its dissatisfaction and specifically set forth its complaints. If the parties are unable to resolve their differences within thirty (30) days after Winding Trail Accounting, LLC’s receipt of Client’s written notice, it is agreed that either party may invoke the services of an impartial mediator under the auspices of the commercial mediation rules of the American Arbitration Association, United States Arbitration and Mediation Service, or any other national neutral mediation service, at the election of the party who first requests mediation. It is agreed that no claim pertaining to the quality or timeliness and/or alleged negligence of Winding Trail Accounting, LLC’s provided services shall be arbitrated unless the foregoing procedures have first been followed and the mediator fails to settle the claim within thirty (30) days after the mediation process has concluded.

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Binding Arbitration

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Any and all disputes in any way concerning the services provided by Winding Trail Accounting, LLC pursuant to the Agreement (including services performed under any prior agreement) or the business relationship arising out of the Engagement or any prior Engagement shall be committed to binding arbitration before the American Arbitration Association (“AAA”), including any disputes involving parties who are Affiliates of Client or who are alleged third-party beneficiaries to this Agreement. The Arbitrator, and not any federal, state, or local court or agency, shall have exclusive jurisdiction to resolve any disputes involving Winding Trail Accounting, LLC, and it is the intent of this Agreement that this grant of jurisdiction be the broadest allowed by law, and that any disputes regarding the scope of the Arbitrator’s jurisdiction be both decided by the Arbitrator and resolved in favor of arbitration, except where expressly prohibited by applicable law. Without limiting the foregoing, the Arbitrator shall have exclusive jurisdiction to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement including, but not limited to any claim that all or any part of this Agreement was not agreed to, is invalid, or is void or voidable. Such arbitration shall be conducted in accordance with the AAA’s Commercial Arbitration Rules then in effect, as modified by the provisions stated herein. The location of the arbitration shall be in the Denver metropolitan area. The parties shall select one arbitrator, unless the amount of any demand or counterclaim in the arbitration shall be $750,000 or more, in which case the parties shall select three arbitrators. The parties shall have the right to conduct discovery in the arbitration consistent with that discovery permitted by the Federal Rules of Civil Procedure, with the arbitrator(s) to decide any discovery disputes. All proceedings conducted in the arbitration, including any discovery and any order entered by the arbitrator(s), shall be strictly confidential. The award of the arbitrator(s) shall be final, and may be confirmed by the parties in the Boulder Circuit Court, or in the United States District Court for the State of Colorado.

 

Governing Law

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The Agreement, including its formation, the parties’ respective rights and duties and all disputes that might arise from or in connection with the Agreement or its subject matter, shall be governed by and construed in accordance with the laws of Colorado, without giving effect to conflicts of laws rules.

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Attorney’s Fees and Costs

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In connection with any legal action, arbitration or litigation arising from or in connection with the Agreement or its subject matter, the prevailing party shall be entitled to recover, subject to the damage limitations set forth in the Agreement, all costs incurred by such party in furtherance of such legal action, arbitration or litigation, including reasonable attorney’s fees.

 

Construction

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To the extent any apparent or actual contradiction may exist when construing or interpreting the contents of the Letter and the Terms, the Terms shall control and supersede any statement contained in the Letter, unless expressly stated otherwise in the provision or portion of the Letter or Terms at issue.

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Waivers

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Neither the failure nor any delay by any party in exercising any right, power or privilege under the Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege.

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Entire Agreement and Modification

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The Agreement supersedes all prior agreements, arrangements and communications between the parties with respect to its subject matter and constitutes a complete and exclusive statement of the terms of the agreement between the parties with respect to its subject matter. The Agreement may not be modified or amended except by the mutual written agreement of both parties.

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Severability

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If any arbitrator or court of competent jurisdiction holds any provision of the Agreement invalid or unenforceable, the other provisions of the Agreement will remain in full force and effect. Any provision of the Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.

 

Ownership of Services Work Product

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All copyrights, patents, trade secrets, or other intellectual property rights associated with any ideas, concepts, techniques, inventions, processes, or works of authorship developed or created solely by Winding Trail Accounting, LLC during the course of performing Client’s work (collectively, the “Work Product”) shall belong exclusively to Winding Trail Accounting, LLC. Client automatically assigns to Winding Trail Accounting, LLC at the time of creation of the Work Product, without any requirement of further consideration, any right, title, or interest it may have in such Work Product, including any copyrights or other intellectual property rights pertaining thereto. Upon request of Winding Trail Accounting, LLC, Client shall take such further actions, including execution and delivery of instruments of conveyance, as may be appropriate to give full and proper effect to such assignment.

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Conflicts of Interest

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We will inform you if we become aware of any conflict of interest in our relationship with you or in our relationship with you and another client. Where conflicts are identified which cannot be managed in a way that protects your interests we will resolve the conflict by finding one of the parties a substitute provider.

 

If there is a conflict of interest that is capable of being addressed successfully by the adoption of suitable safeguards to protect your interests then we will adopt those safeguards. Where possible this will be done on the basis of your informed consent. We reserve the right to act for other clients whose interests are not the same as or are adverse to yours subject of course to the obligations of confidentiality referred to above.

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Dwight Dettloff wholly owns Winding Trail Financial Planning, LLC, registered as an Investment Adviser with the State of Colorado. A conflict of interest exists when Winding Trail Accounting, LLC recommends Winding Trail Financial Planning, LLC for financial planning or investment advisory services to its accounting and tax clients. Clients have the right to choose to engage Winding Trail Financial Planning, LLC for any of the services that it provides. Clients are not required to use Winding Trail Financial Planning, LLC for services that we recommend and may use any service provider that the client deems appropriate. Our services under this Agreement do not constitute financial planning or investment advice.

 

Headings

 

The headings of paragraphs contained in the Agreement are provided for convenience only. They form no part of the Agreement and shall not affect its construction or interpretation.

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*THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES.*