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Cherry Bekaert Advisory LLC Terms and Conditions for Services

Version 1.0: Last Updated 1/8/26

Please note that these Cherry Bekaert Advisory LLC Terms and Conditions for Services located at https://www.cbh.com/terms-and-conditions-for-services (these “Terms”) apply to Services provided by Cherry Bekaert Advisory LLC (“Cherry Bekaert”).

These Terms, together with any applicable Statement of Work (together with these Terms, the “Agreement”), constitute a binding agreement between Cherry Bekaert and the other party executing the Statement of Work, clicking to accept/agree to these Terms, or using the Services (the “Customer” and, together with Cherry Bekaert, the “Parties” and each of them individually, a “Party”).  

BY ENTERING INTO A STATEMENT OF WORK  GOVERNED BY, REFERENCING, OR OTHERWISE INCORPORATING THESE TERMS, BY CLICKING TO ACCEPT OR AGREE TO THESE TERMS (WHEN THAT OPTION IS MADE AVAILABLE TO CUSTOMER), OR BY OTHERWISE USING THE SERVICES, CUSTOMER ACKNOWLEDGES THAT CUSTOMER READ THESE TERMS AND AGREES TO BE BOUND BY THESE TERMS.

ANY INDIVIDUAL AGREEING TO BE BOUND BY THE AGREEMENT ON BEHALF OF AN ENTITY REPRESENTS AND WARRANTS THAT SUCH INDIVIDUAL HAS THE FULL AUTHORITY TO BIND SUCH ENTITY TO THE AGREEMENT.

Cherry Bekaert may modify, amend, or otherwise update these Terms from time to time in its sole discretion, as further described in Section 15.1.

  • 1. Definitions. Unless otherwise stated in these Terms, the defined terms set forth below shall have the following meanings:
    • 1.1.  “Agreement” means these Terms together with all applicable addenda and amendments signed by each Party, and all schedules, exhibits, annexes, and SOWs, and any other applicable terms and conditions that are incorporated in an applicable SOW or in these Terms.
    • 1.2. “Background IP” means all documents, hardware, data, information, know-how, methodologies, processes, procedures, programs, software, technologies, templates, source code, object code, scripts, models, reports, specifications, and other materials, including all Intellectual Property Rights therein, provided by or used by Cherry Bekaert in connection with performing the Services, in each case (i) developed or acquired by Cherry Bekaert prior to the commencement or independently of the Agreement, or (ii) of general applicability to Cherry Bekaert’s business or customers, including in connection with the Services, and not developed specifically for Customer, plus any modifications or enhancements thereto and derivative works based thereon.
    • 1.3. “Customer Data” means any data, information or material provided, inputted, or submitted by Customer or on Customer’s behalf in connection with the Agreement.
    • 1.4. “Intellectual Property Rights” means all rights comprising or relating to intellectual property, including, but not limited to: (a) patents, patent disclosures and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, brand name, logos, corporate names and domain names, and all other similar indicia of source of goods and services, in each case together with all of the goodwill associated therewith, (c) works of authorship (whether or not copyrightable), expressions, designs, copyrights and copyrightable works (including, but not limited to computer software, programs, and applications), mask works, moral rights, industrial design rights, 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 or not registered and including all registrations and applications for, and continuations, continuations-in-part, reissues, divisions, renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection pursuant to the laws of any jurisdiction in any part of the world.
    • 1.5. “Services” means the professional services and Work Product, if any, to be provided by Cherry Bekaert to Customer under the Agreement as described in more detail in each applicable SOW.
    • 1.6. “Statement of Work” or “SOW” means each statement of work or similar order document entered into by the Parties from time-to-time governed by, referencing, or otherwise incorporating these Terms.
    • 1.7. “Technology Partner IP” means all documents, hardware, data, know-how, methodologies, software, templates, and other materials, including computer programs, reports, and specifications, including all Intellectual Property Rights therein, provided by or used by a Technology Partner (as defined in Section 2.3 below) in connection with performing or providing any Technology Partner Service (as defined in Section 2.3 below).
    • 1.8. “Work Product” means any and all works, materials, designs, specifications, systems, innovations, documentation or reports that are developed, produced, generated or provided by Cherry Bekaert to Customer in connection with Cherry Bekaert’s performance of the Services as set forth in each applicable SOW, but specifically excluding any Background IP, Customer Data, Technology Partner Service and Technology Partner IP.
  • 2. Services. Cherry Bekaert agrees to provide to Customer the Services described in each SOW in accordance with these Terms. The method and means of providing the Services shall be under the control, management, and supervision of Cherry Bekaert, giving due consideration to the requests of Customer. The Services may include advice and recommendations of Cherry Bekaert, but management decisions in connection with the execution and communication of such advice and recommendations are Customer’s sole responsibility. 
    • 2.1. Non-exclusivity. Nothing herein shall be deemed to preclude the Parties from retaining or performing the same or similar type of services for other persons or entities undertaking the same or similar functions as those undertaken by Customer or Cherry Bekaert hereunder or from independently developing or acquiring goods or services that are similar to, or competitive with, the goods or services, as the case may be, contemplated under the Agreement.
    • 2.2. Use of Third-Party Service Providers. In connection with Cherry Bekaert’s performance of the Services, Cherry Bekaert may use the services of domestic and foreign (as permitted by applicable law) independent contractors or temporary or loaned employees, all of whom may be considered a third-party service provider (each, a “Third-Party Service Provider”). Cherry Bekaert will enter into a contractual agreement with the Third-Party Service Provider to maintain the confidentiality of confidential information. Cherry Bekaert is liable for the acts and omissions of Third-Party Service Providers engaged by Cherry Bekaert in connection with the Agreement.
    • 2.3. Technology Partners. In connection with Cherry Bekaert’s performance of the Services, Cherry Bekaert may use, offer, make available, provide access to, sell, resell, incorporate, embed and/or install certain software, application, hardware and/or technological communication products or services (each, “Technology Partner Service”) offered by third-party technology providers (each, a “Technology Partner”), including, but not limited to software-as-a-service (SaaS), infrastructure-as-a-service (IaaS), and platform-as-a-service (PaaS) whether or not such Technology Partner Service works in conjunction with or is made available as a part of the Services or is provided on a stand-alone basis. Customer agrees that Cherry Bekaert does not make any representations or warranties as to, and Cherry Bekaert will have no liability regarding, any Technology Partner Service, Technology Partner IP or any products or services of any Technology Partners regardless of whether or not such Technology Partner or their products or services are designated by Cherry Bekaert as “a partner,” “validated,” “certified” or otherwise. Customer releases Cherry Bekaert from any liability or obligations arising from any Technology Partner Service, Technology Partner IP or any products or services of any Technology Partners. Customer covenants, represents and warrants that Customer shall comply with all additional terms of use, end user license agreements, user agreements, or other terms and conditions of the Technology Partner that are applicable to Technology Partner Service or Technology Partner IP, each as required by the Technology Partner. Any exchange of Customer Data, trade secrets, Confidential Information (defined below), or proprietary information or other interaction between Cherry Bekaert and/or a Customer and a Technology Partner, and any purchase by Cherry Bekaert or a Customer of any product or service offered by such Technology Partner, is solely between Cherry Bekaert and/or Customer and the Technology Partner and subject to the applicable Technology Partner terms of use, end user license agreements, user agreements, or other terms and conditions of the Technology Partner, each as required by such Technology Partner. Except as may be agreed to in writing by such Technology Partner, the Technology Partner and its licensors are, and shall remain, the sole and exclusive owners of all right, title and interest in and to the Technology Partner Service and Technology Partner IP, including all Intellectual Property Rights therein.
    • 2.4. Change Orders. If Customer desires to change the scope or performance of the Services, Customer shall submit the requested change to Cherry Bekaert in writing. Cherry Bekaert shall, within a reasonable time after receiving a Customer-initiated request, provide a written estimate to Customer of the estimated time required to implement the change and any necessary variations to the Fees and other charges for the Services arising from the change. Promptly after receipt of the written estimate, the Parties shall negotiate and seek to agree in writing on a change order amendment to the applicable SOW or a new SOW regarding the terms of such change. Neither Party shall be bound by any change order request or change order amendment unless it is in writing and executed by each Party.
    • 2.5. Affiliates. A subsidiary or other affiliate of Cherry Bekaert may execute SOWs with Customer pursuant to these Terms, and such subsidiary or other affiliate will be considered “Cherry Bekaert” under these Terms for purposes of each such SOW only. Each such SOW and these Terms will form a separate contract between Customer and such subsidiary or other affiliate, with Customer and such subsidiary or other affiliate being solely responsible under such separate contract.
  • 3. Term and Termination.
    • 3.1. Term. The term of the Agreement shall commence on the effective date of the first applicable SOW (the “Effective Date”) and shall continue until the termination or expiration of all SOWs made part of the Agreement, at which point the Agreement will automatically terminate.
    • 3.2. Termination for Convenience. Either Party may terminate the Agreement upon providing the other Party with written notice of at least thirty (30) days. In the event a Party properly provides such notice of its intent to terminate the Agreement under this Section 3.2, the Agreement shall continue until the later of (a) thirty (30) days after such notice or (b) immediately following the termination or expiration of all SOWs made part of the Agreement, at which point the Agreement will automatically terminate.
    • 3.3. Termination for Cause. In addition to any other termination rights under these Terms, either Party upon written notice to the other Party (a) may terminate the Agreement if such other Party materially breaches the Agreement and such breach is not cured within thirty (30) days after receipt of written notice of such breach from the terminating Party, (b) may terminate an SOW if such other Party materially breaches such SOW and such breach is not cured within thirty (30) days after receipt of written notice of such breach from the terminating Party, and (c) may terminate the Agreement if such other Party becomes the subject of any involuntary petition in bankruptcy that is not dismissed or vacated within 60 days after filing or any voluntary proceeding relating to insolvency, bankruptcy, receivership, liquidation, or composition for the benefit of creditors, or otherwise dissolves or ceases to do business. Customer’s non-payment of Fees or other amounts due to Cherry Bekaert under the Agreement will be deemed a material breach of these Terms and the applicable SOW by Customer. In the event a Party properly provides such notice of its intent to terminate the Agreement, the Agreement shall continue until the later of (i) the date that the Agreement would terminate pursuant to this Section 3.3 (Termination for Cause) (after giving effect to the cure periods therein), or (ii) immediately following the termination or expiration of all SOWs made part of the Agreement, at which point the Agreement will automatically terminate.
  • 4. Fees and Billing Procedures. Customer agrees to pay Cherry Bekaert for the Services in accordance with the fee(s) set forth herein and in each applicable SOW (“Fees”).
    • 4.1. Time of Payment and Billing. Except as otherwise provided in the applicable SOW, Fee(s) are due and payable upon receipt by Customer of an invoice from Cherry Bekaert. If any Fees or other amounts due to Cherry Bekaert under an SOW are more than ten (10) days past due, Cherry Bekaert: (a) may charge Customer a service charge equal to the lower of 1.5% per month or the maximum rate permitted by applicable law on any such past due amounts, with a minimum charge of $2.00 per month, and (b) may stop all Services until Customer’s account is brought current and the individuals performing the Services become available. Except as otherwise provided in the applicable SOW, invoices may be rendered monthly, and Cherry Bekaert will forward invoices via email to the billing contact specified by Customer for the Services rendered pursuant to each applicable SOW then payable. Except as otherwise provided in the applicable SOW, upon termination or expiration of such SOW, Customer shall pay Cherry Bekaert all Fees and other amounts due to Cherry Bekaert for Services performed up through the effective date of any such termination or expiration, upon receipt by Customer of an invoice from Cherry Bekaert for such Services.
    • 4.2. Expenses; Technology Fee. Subject to the prior approval by Customer, and upon receipt by Customer of an invoice from Cherry Bekaert, Customer shall reimburse Cherry Bekaert for reasonable travel and out-of-pocket expenses incurred in connection with the performance of the Services. Upon Customer’s written request, Cherry Bekaert will provide copies of the expense report and evidence of the travel and out-of-pocket expense(s) incurred by Cherry Bekaert. Customer shall also pay to Cherry Bekaert a 5% technology fee that is applied to all professional service fees, upon receipt by Customer of an invoice from Cherry Bekaert.
    • 4.3. Disputed Fees/Amounts. In the event Customer disputes a Fee or other amount on an invoice, Customer must deliver a written statement to Cherry Bekaert within thirty (30) days of Customer’s receipt of such invoice listing all disputed Fee(s) and other amounts and providing a reasonably detailed description of each disputed item. Fees and other amounts not so disputed shall be deemed accepted by Customer and shall be paid within the agreed upon period. The Parties shall seek to resolve all such disputes expeditiously and in good faith.
  • 5. Confidential Information.
    • 5.1. Non-Disclosure.
      • 5.1.1. “Confidential Information” means any and all non-public information that is disclosed by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), which is marked “confidential” or “proprietary” or which should reasonably be understood by the Receiving Party to be confidential or proprietary, including, without limitation, the contents of each SOW, and any confidential or proprietary information that relates to its business affairs, products or services, prices, business plans, marketing, finances, Intellectual Property Rights, or third-party confidential information, whether disclosed orally or in written, electronic, or other form or media; provided, however, the term “Confidential Information” does not include any information or documentation that: (i) was known to the Receiving Party prior to its disclosure by the Disclosing Party; (ii) is or becomes publicly known through no wrongful act of the Receiving Party; (iii) has been rightfully received from a third-party authorized to make such disclosure without restriction; (iv) is independently developed by the Receiving Party without use of or reference to the Confidential Information of the Disclosing Party; or (v) has been approved for release by the Disclosing Party’s prior written authorization.
      • 5.1.2. During the term of the applicable SOW and for a period of three (3) years following completion of the Services contemplated therein, the Receiving Party agrees: (a) not to disclose Confidential Information of the Disclosing Party provided to the Receiving Party in connection with the Services contemplated in such SOW 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 employees, members, consultants, independent contractors, vendors, Third-Party Service Providers, Technology Partners, agents and representatives (and with respect to Cherry Bekaert, to its associated entity Cherry Bekaert LLP) who have a “need to know” and who are bound by confidentiality obligations at least as restrictive as those set forth in this Section 5 (Confidential Information); and (b) to use the Confidential Information of the Disclosing Party only for the purposes of performing its obligations and exercising its rights under the Agreement. Unless otherwise agreed to by the Parties in writing, the Confidential Information of the Disclosing Party will be and remain the property of the Disclosing Party. These Terms supersede and control over any and all confidentiality agreements, non-disclosure agreements, and similar agreements regarding non-disclosure of information entered into by the Parties prior to the Effective Date, it being agreed that all of each Party’s rights and obligations with respect to information are governed by these Terms.
    • 5.2. Surrender and Destruction. Following the expiration or termination of the applicable SOW and upon the written request of the Disclosing Party, the Receiving Party shall at its option promptly destroy or return to the Disclosing Party all Confidential Information received by the Receiving Party in connection with that SOW. In the event the Receiving Party destroys such Confidential Information, the Disclosing Party may request written certification of such destruction from the Receiving Party. Notwithstanding the foregoing, Cherry Bekaert has the right to retain Confidential Information that is captured by automatic backup and electronic systems in the ordinary course of business or as may be required by applicable professional standards; provided, however, all such retained Confidential Information shall remain subject to these Terms.
    • 5.3. Compelled Disclosure. If the Receiving Party becomes legally compelled to disclose any Confidential Information by governmental regulation, subpoena, or other legal process, the Receiving Party shall provide: (a) prompt written notice of such requirement to the Disclosing Party (unless prohibited by law) 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. If, after providing such notice and assistance as required herein, the Receiving Party remains legally required 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. In the event Cherry Bekaert is requested or authorized by Customer or required by government regulation, subpoena, or other legal process to produce Customer’s Confidential Information, Customer Data, Work Product or Cherry Bekaert’s personnel as witnesses with regard to Services performed for Customer, Customer will, so long as Cherry Bekaert is not a party to the proceeding in which the information is sought, reimburse Cherry Bekaert for its professional time and expense, as well as the reasonable fees and expenses of Cherry Bekaert’s counsel, incurred in responding to such a request.
  • 6. Work Product and Intellectual Property Rights.
    • 6.1. Work Product. Except as provided in Section 6.2 (Background IP), and subject to Cherry Bekaert’s receipt of Customer’s payment for all Fees and other amounts owed by Customer to Cherry Bekaert: (a) Customer is, and shall be, the sole and exclusive owner of all right, title, and interest in and to all Work Product, including all Intellectual Property Rights therein; (b) Cherry Bekaert agrees that with respect to any Work Product that may qualify as “work made for hire” as defined in 17 U.S.C. § 101, such Work Product is hereby deemed a “work made for hire” for Customer, and to the extent that any of the Work Product does not constitute a “work made for hire” under applicable law, Cherry Bekaert hereby transfers and assigns to Customer any and all Intellectual Property Rights that Cherry Bekaert now has or may hereafter acquire in and to the Work Product; and (c) upon Customer’s written request and at Customer’s sole cost and expense, Cherry Bekaert agrees to use commercially reasonable efforts to assist Customer and to take further actions, including execution and delivery of instruments of conveyance, as may be reasonably required to give full and proper effect to such assignment. Notwithstanding any provision of these Terms to the contrary, in the event that working papers are compiled by Cherry Bekaert in connection with the Services, then such working papers (but not the Customer Data contained in them) shall be the sole property of Cherry Bekaert and shall not be Work Product.
    • 6.2. Background IP. The Parties acknowledge and agree that Cherry Bekaert and its licensors are, and shall remain, the sole and exclusive owners of all right, title and interest in and to the Background IP, including all Intellectual Property Rights therein. If, and to the extent that, any Background IP is embodied or reflected in the Work Product, Cherry Bekaert hereby grants to Customer an irrevocable, perpetual, non-exclusive, worldwide, royalty-free, fully paid up, sublicensable right and license to use, execute, reproduce, display, perform, distribute copies of and prepare derivative works based upon such Background IP and any derivative works thereof to the extent incorporated in, combined with or otherwise necessary for the use of the Work Product solely to the extent reasonably required in connection with Customer’s receipt or use of the Services.
    • 6.3. Customer Data. Unless otherwise agreed by the Parties in writing, Customer Data shall be and remain the sole and exclusive property of Customer. Customer hereby grants Cherry Bekaert and its employees, members, consultants, independent contractors, vendors, agents, representatives, and any Third-Party Service Providers and/or Technology Partners engaged by Cherry Bekaert in connection with its performance of the Services a license to use, store, process, and transfer Customer Data to the extent necessary in providing the Services and as further set forth in these Terms. Cherry Bekaert may use and aggregate Customer Data, and any suggestions, comments, or other feedback provided by Customer, to enhance and develop its products, services and operations, and to conduct marketing, research and development activities, benchmarking and knowledge sharing; such use of Customer Data will not allow Customer or any individual to be identified by third parties. Customer acknowledges that Cherry Bekaert owns all right, title and interest in such aggregated data in combined form, and Cherry Bekaert may use and disclose such data at its discretion, including for commercial purposes. Customer covenants, represents and warrants that Customer owns or has the necessary licenses, rights, consents and permissions to use and authorize Cherry Bekaert and its employees, members, consultants, independent contractors, vendors, agents, representatives, and any Third-Party Service Providers and/or Technology Partners engaged by Cherry Bekaert to use all Customer Data in the manner contemplated under these Terms, and to transfer and process such Customer Data as may be required by applicable law. Customer shall have sole responsibility for the accuracy, currency, completeness and legality of all Customer Data. If Customer Data, Confidential Information, or other materials disclosed or made available to Cherry Bekaert in connection with the Agreement may be subject to heightened protections under applicable privacy laws, data protection laws, or other applicable laws, including, but not limited to, the Health Insurance Portability and Accountability Act of 1996 (HIPAA), then Customer must notify Cherry Bekaert in advance of such disclosure or access (email acceptable). If performance of the Services requires Cherry Bekaert to process the personal data of European Union or United Kingdom residents, Customer will notify Cherry Bekaert and the Parties will work together in good faith to execute a data processing addendum covering such processing. Cherry Bekaert shall and shall use reasonable efforts to implement, maintain and enforce commercially reasonable security measures to help prevent the unauthorized access, use, corruption, loss or disclosure of non-public Customer Data and Confidential Information.
    • 6.4. No License; Advertising and Publicity. Except as otherwise provided in these Terms or in an SOW, no license or other right is granted by these Terms and these Terms shall not be construed to grant a license or other right to either Party by the other Party with respect to Confidential Information, Background IP, or Customer Data. Neither Party shall use the name or logo of or refer to the other Party directly or indirectly in any advertisement, news release, or professional or trade publication without prior written approval from the other Party; provided, however, Cherry Bekaert may use Customer’s name and logo, and otherwise refer to Customer, on any customer list of Cherry Bekaert.
  • 7. Representations and Warranties. Each Party represents and warrants to the other Party that: (a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation, organization, or chartering; (b) it has the full right, power, and authority to enter into the Agreement, to grant the rights and licenses, if applicable, granted under the Agreement, and to perform its obligations under the Agreement; (c) the execution of the applicable SOW by its representative on the signature page of the applicable SOW has been duly authorized by all necessary entity action; (d) when executed and delivered, the applicable SOW and these Terms forming the Agreement will constitute a legal, valid, binding and enforceable obligation, except as may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally; and (e) it will comply in all material respects with applicable federal, state, local, international, or other laws and regulations applicable to the performance by it of its obligations under the Agreement, and it has or will obtain all applicable permits and licenses required of it in connection with its obligations under the Agreement.
  • 8. Limited Service Warranty; Disclaimer.
    • 8.1. Warranty Generally. Cherry Bekaert warrants to Customer that the Services will be performed in a professional manner and in accordance with, in all material respects, any specifications set forth in the applicable SOW. Cherry Bekaert’s entire liability, and Customer’s sole and exclusive remedy, for breach of the warranty in this Section 8.1 (Warranty Generally) is Cherry Bekaert using reasonable efforts to correct such breach. Notwithstanding the foregoing, the above warranty does not apply to the extent the breach of warranty was caused by or arises from (a) any modification or repair to the Services unless provided by Cherry Bekaert, (b) any unauthorized or improper use of the Services, or (c) any third-party product, software, application or service (including in combination with the Services).
    • 8.2. Non-Infringement Warranty. Cherry Bekaert warrants to Customer that, to Cherry Bekaert’s knowledge, the Services contemplated herein (exclusive of the Customer Data, Technology Partner Service and Technology Partner IP) do not infringe upon any United States copyright, registered or issued patent, trade secret, or other proprietary right, or misappropriate any trade secret, of any third-party; provided, however, that Cherry Bekaert assumes no liability for infringement or misappropriation claims (and the provisions of the warranty set forth in this Section 8.2 (Non-Infringement Warranty) shall not have been breached) to the extent such claims are caused by modifications, alterations or additions to the Services that are performed by any person or entity other than Cherry Bekaert.
    • 8.3. EXCEPT FOR THE EXPRESS WARRANTIES OF CHERRY BEKAERT IN THE AGREEMENT, CHERRY BEKAERT HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, UNDER OR IN RELATION TO THE AGREEMENT, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ANY IMPLIED WARRANTIES ARISING FROM THE COURSE OF DEALING OR COURSE OF PERFORMANCE.
  • 9. Customer’s Obligations. Customer shall: (a) cooperate in good faith with Cherry Bekaert in its performance of the Services, including providing Cherry Bekaert with reasonable access to facilities and timely access to Customer’s materials, information, systems and personnel as Cherry Bekaert may reasonably request for the purposes of performing the Services; (b) respond promptly to any Cherry Bekaert request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Cherry Bekaert to perform the Services in accordance with the Agreement; (c) designate an authorized representative on each SOW to oversee the performance of the Services, receive communications regarding the Services, make any management decisions, perform any management functions related to the Services, evaluate the adequacy of the Services, and accept overall responsibility for the results of the Services; and (d) provide any required notices and materially comply with all applicable laws in relation to the Services, to the extent relating to Customer’s business, premises, staff or equipment or any Customer Data.
  • 10. Non-Solicitation of Employees. During the term of the Agreement and for a period of twelve (12) months after the termination or expiration of the Agreement, Customer agrees not to, directly or indirectly, solicit, recruit or hire, attempt to solicit, recruit or hire, or assist any third-party to solicit, recruit or hire (for employment or engagement as a consultant or otherwise), any employee of Cherry Bekaert who was involved in matters relating to the Services, without the prior written consent of Cherry Bekaert. Notwithstanding the foregoing, Customer is not prohibited from (a) placing general advertisements or a notice of a job listing or opening in any media, so long as not directed at the employees of Cherry Bekaert, or (b) recruiting or hiring employees or former employees of Cherry Bekaert through agencies (so long as Customer does not direct such agencies to solicit Cherry Bekaert’s employees). In the event Customer breaches this Section 10 (Non-Solicitation of Employees), Cherry Bekaert may elect to require Customer to pay to Cherry Bekaert as liquidated damages an amount equal to 33.33% of the total gross compensation (including base salary and any bonuses or incentive compensation) paid to the employee by Cherry Bekaert during the 12-month period immediately preceding the separation of the employee from Cherry Bekaert. The Parties acknowledge and agree: that Cherry Bekaert has invested significant time, effort and expense into the recruitment, training and retention of its employees; that the Parties cannot now determine the amount of the damages that Cherry Bekaert would sustain upon the breach by Customer of any of the provisions of this Section 10 (Non-Solicitation of Employees); and that it would be very difficult to determine and quantify that amount upon a breach by Customer of any of the provisions of this Section 10 (Non-Solicitation of Employees).
  • 11. Indemnification. Customer agrees to defend, indemnify and hold harmless Cherry Bekaert and its members, officers, directors, employees, agents, successors and permitted assigns from any and all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs, or expenses of whatever kind (including reasonable attorneys’ fees and court costs) and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers arising out of or resulting from any claim or action arising out of or relating to: (a) the conduct of Customer’s business, including, without limitation, the use by Customer of the Services except to the extent caused by Cherry Bekaert’s gross negligence, willful misconduct or breach of the Agreement; (b) allegations that any Customer Data or the use thereof infringes or misappropriates any intellectual property or other rights of a third party or violates any applicable law; or (c) known misrepresentations by a member of Customer’s management.
  • 12. Limitation of Liability.
    • 12.1. EXCEPT FOR LIABILITY ARISING FROM ANY BREACH OF SECTION 4 (FEES AND BILLING PROCEDURES) OR FOR A PARTY’S OBLIGATIONS PURSUANT TO SECTION 11 (INDEMNIFICATION) HEREIN, 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 LOSS OF DATA 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, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
    • 12.2. EXCEPT FOR LIABILITY ARISING FROM ANY BREACH OF SECTION 4 (FEES AND BILLING PROCEDURES) OR FOR A PARTY’S OBLIGATIONS PURSUANT TO SECTION 11 (INDEMNIFICATION) HEREIN, IN NO EVENT SHALL THE AGGREGATE CUMULATIVE LIABILITY OF CHERRY BEKAERT HEREUNDER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID TO CHERRY BEKAERT UNDER THE SOW FROM WHICH THE CLAIM ARISES.
    • 12.3. Timely Claims. Excluding claims related to taxes or the non-payment of Fees, and to the extent permitted by law, no Party shall bring any claim related to the Agreement more than eighteen (18) months after the cause of action accrues.
  • 13. Dispute Resolution Procedures. In the event that a dispute arises between the Parties relating to the Agreement, the Parties shall meet and confer to attempt to resolve in good faith such dispute. If after thirty (30) days the dispute has not been resolved, the following shall apply:
    • 13.1. Mediation. All disputes shall be first submitted to nonbinding confidential mediation by written notice to the Parties, and shall be treated as compromise and settlement negotiations under the standards set forth in the Federal Rules of Evidence and all applicable state counterparts, together with any applicable statutes protecting the confidentiality of mediations or settlement discussions. If the Parties cannot agree on a mediator, the International Institute for Conflict Prevention and Resolution, at the written request of a Party, shall designate a mediator.
    • 13.2. Arbitration. If a dispute has not been resolved within 90 days after the effective date of the written notice beginning the mediation process (or such longer period, if the Parties so agree in writing), the mediation shall terminate and the dispute shall be resolved by binding arbitration to be held at a mutually agreeable location. The arbitration shall be conducted in accordance with the International Institute for Conflict Prevention and Resolution Rules for Non-Administered Arbitration that are in effect at the time of the commencement of the arbitration, except to the extent modified by this Dispute Resolution Provision (the “Arbitration Rules”), before a panel of three arbitrators. Each of Customer and Cherry Bekaert shall designate one arbitrator in accordance with the “screened” appointment procedure provided in the Arbitration Rules, and the two Party-designated arbitrators shall jointly select the third arbitrator in accordance with the Arbitration Rules. No arbitrator may serve on the panel unless he or she has agreed in writing to enforce the Agreement and to abide by the Arbitration Rules. The arbitrators may render a summary disposition relative to all or some of the issues, provided that the responding party has had an adequate opportunity to respond to any such application for such disposition. Any discovery shall be conducted in accordance with the Arbitration Rules. The result of the arbitration shall be binding on the Parties, and judgment on the arbitration award may be entered in any court having jurisdiction. Each Party shall bear its own costs and expenses in any such mediation and in any such arbitration.
  • 14. Independence and Attest Services; Alternative Practice Structure and Associated Entities.
    • 14.1. In the event Cherry Bekaert LLP (an associated, but not affiliated entity) performs financial statement attest services for Customer, Cherry Bekaert will be subject to the independence requirements of the American Institute of Certified Public Accountants (“AICPA”) which preclude Cherry Bekaert from providing certain services to Customer. In order for Cherry Bekaert to maintain its independence with any attest client in accordance with AICPA rules, Customer’s management shall be responsible for: (a) making decisions on behalf of Customer’s management; (b) managing or performing a new accounting standards adoption project; (c) selecting accounting policies or accounting positions; (d) drafting accounting policies and manuals; (e) calculation of amounts and related journal entries; (f) designing and/or implementing manual or IT processes for the application of new or revised accounting literature; (g) evaluating the adequacy of all services provided; and (h) accepting overall responsibility for the results of Services. In the event Cherry Bekaert LLP performs financial statement attest services for Customer, Cherry Bekaert can provide the following services while maintaining its independence in accordance with AICPA rules provided Customer’s management complies with their responsibilities as outlined above: (t) general diagnostic discussion with Customer’s management; (u) provide and discuss authoritative guidance; (v) provide and discuss interpretive guidance including the Financial Accounting Standards Board, Governmental Accounting Standards Board and AICPA interpretations; (w) assist in identifying additional reports and data needed; (x) analyze potential impact on debt covenants; (y) analyze potential impact on compensation agreements; and (z) assist in assessing the tax impact.
    • 14.2. Cherry Bekaert Advisory LLC and Cherry Bekaert LLP are operating in an arrangement commonly described as an “alternative practice structure”. Cherry Bekaert LLP leases professional and administrative staff, all of whom are employed or engaged by Cherry Bekaert Advisory LLC, to support Cherry Bekaert LLP’s performance of its professional services. Cherry Bekaert LLP and Cherry Bekaert Advisory LLC require confidential treatment of all Customer Data. To the extent Cherry Bekaert LLP provides professional services relating to Customer, Customer consents to Cherry Bekaert LLP, Cherry Bekaert Advisory LLC, and any other affiliate or associated entity sharing Customer’s Confidential Information, Customer Data, and other financial records to provide such services.
  • 15. Miscellaneous.
    • 15.1. Entire Agreement; Amendment. The Agreement constitutes the sole and entire agreement of the Parties with respect to the Services or otherwise with respect to the subject matter of the Agreement, and supersedes all prior and contemporaneous understandings, communications, negotiations, representations, and agreements, both written and oral, with respect to the Services. Without limiting the foregoing, these Terms supersede and replace any Master Services Agreement previously executed by Cherry Bekaert and Customer (each, a “Prior MSA”), and these Terms apply to and govern all SOWs (which shall also include each statement of work executed by Cherry Bekaert and Customer pursuant to a Prior MSA). All references to “the master services agreement”, “the MSA”, or words of similar import in each statement of work executed by Cherry Bekaert and Customer pursuant to a Prior MSA shall be deemed to mean these Terms. Cherry Bekaert may modify, amend, or otherwise update these Terms from time to time in its sole discretion by providing notice to Customer by posting the revised version of these Terms at https://www.cbh.com/terms-and-conditions-for-services. Such revised Terms and any such modifications, amendments, or updates within them will be effective as between the Parties upon execution of a new (whether for a new subject matter or substantially the same subject matter) SOW (the “Revision Date”), and such revised Terms as of the Revision Date will also apply to all SOWs (which shall also include each statement of work executed by Cherry Bekaert and Customer pursuant to a Prior MSA) in effect at the Revision Date. In the event of any conflict between any portion of these Terms and a Prior MSA, these Terms will govern and control. In the event of any conflict between any portion of these Terms and an applicable SOW (which shall also include each statement of work executed by Cherry Bekaert and Customer pursuant to a Prior MSA), such applicable SOW will govern and control, excluding Section 12 (Limitation of Liability) of these Terms. No term or condition contained in Customer’s acceptance or order documentation will apply to the Agreement unless specifically agreed to by Cherry Bekaert, in writing, and all such other terms or conditions are otherwise hereby expressly rejected by Cherry Bekaert.
    • 15.2. Relationship Between the Parties. The Parties are independent contractors. The Agreement  shall not be construed as creating any agency, partnership, joint venture, franchise, 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.
    • 15.3. Taxes. Cherry Bekaert shall be solely responsible for all payroll taxes and fringe benefits of Cherry Bekaert’s employees. Customer shall be solely responsible for all sales, use, excise, 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 Customer hereunder.
    • 15.4. Effect of Customer Delays. Cherry Bekaert is not liable for any late delivery or delay or failure of performance under the Agreement (or any late filings, penalties, interest, missed elections or other consequences) to the extent such delay or failure is caused, directly or indirectly, by (a) Customer’s delay in performing, or failure to perform, any of its obligations under the Agreement, (b) any stoppage of Services by Cherry Bekaert due to non-payment of Fees or other amounts by Customer, or (c) the unavailability or absence of key Customer personnel or Customer Data. In the event of any such delay or failure, Cherry Bekaert may extend all or any subsequent due dates or milestones set forth in the applicable SOW as Cherry Bekaert deems reasonably necessary.
    • 15.5. Force Majeure. Notwithstanding any provision of these Terms to the contrary, neither Party shall be liable to the other Party, except for any obligations to make payments to the other Party hereunder, for any delays or non-performance under the Agreement directly or indirectly resulting from circumstances or causes beyond its commercially reasonable control, including, but not limited to: acts of God, fire or other casualty, pandemic, epidemic, quarantine, war,  terrorism, strikes or labor difficulties (excluding those involving a Party’s employees), or service disruptions involving hardware, software, cloud-related services, web-hosting, internet service or power systems, or any law, order or requirement of any governmental entity.
    • 15.6. No Waiver; Cumulative Remedies. The failure of either Party at any time to require performance by the other Party of any provision of the Agreement shall in no way affect that Party’s right to enforce such provisions, nor shall the waiver by either Party of any right or breach of any provision of the Agreement be taken or held to be a waiver of any further right or breach of the same provision. All rights and remedies of each Party shall be in addition to all other rights and remedies available at law or in equity, including, without limitation, specific performance for the enforcement of the Agreement, and temporary and permanent injunctive relief.
    • 15.7. Notices. All notices, consents, waivers and other communications under the Agreement shall be in writing and shall be deemed to have been duly given (a) when delivered by hand; (b) when transmitted by email if sent prior to 5:00 p.m. Eastern Time on a business day and otherwise on the next following business day; (c) five business days after it is mailed, if mailed by registered or certified mail, postage prepaid (return receipt requested); or (d) one business day after it is sent, if sent by a nationally recognized overnight delivery service (e.g. FedEx) with tracking; in each case to the Parties at the addresses listed in the applicable SOW (or such other address for a Party as shall be specified by like notice, provided that notices of a change of address shall be effective only upon receipt thereof).
    • 15.8. Choice of Law; Consent to Jurisdiction. The Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, in all respects, without regard to conflicts of law principles. The Parties hereby consent to the jurisdiction of the courts of Henrico County of the Commonwealth of Virginia and of the United States District Courts located in Henrico County of the Commonwealth of Virginia (to the extent such courts have subject matter jurisdiction) in connection with any action, suit, or other proceeding in connection with, arising out of, or relating to the Agreement, and agree not to assert in any such action, suit, or proceeding that it or he is not personally subject to the jurisdiction of such courts, that the action, suit, or proceeding is brought in an inconvenient forum, or that venue of the action, suit, or proceeding is improper.
    • 15.9. WAIVER OF TRIAL BY JURY. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THE AGREEMENT.
    • 15.10. Assignment; Third Party Beneficiaries. Except as otherwise provided in these Terms, neither Party may assign or delegate the Agreement, or any of its rights or obligations under the Agreement, without the prior written consent of the other Party. Each Party shall have the right to assign the Agreement without the other Party’s consent to its affiliate or in connection with a merger, acquisition, restructuring, reorganization, or a sale or other disposition of all or substantially all of its assets or equity interests. Any assignment or delegation in violation of the foregoing shall be void. Subject to the foregoing, the Agreement will be binding upon and inure to the benefit of the Parties, their successors and permitted assigns. Except as set forth in Section 11 (Indemnification), the Parties do not confer any rights, benefits, or remedies upon any person or entity other than the Parties to the Agreement and their respective successors and permitted assigns.
    • 15.11. Severability. If any provision of the Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other provision of the Agreement or invalidate or render unenforceable such provision in any other jurisdiction. Upon a determination that any provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify the Agreement to affect the original intent of the Parties as closely as possible to the end that the transactions contemplated hereby are fulfilled to the greatest extent possible.
    • 15.12. Construction. The headings used in these Terms are for convenience of reference only and shall not affect the interpretation of these Terms. Both Parties had the opportunity to negotiate the provisions of the Agreement. No provisions of the Agreement are intended to or shall be construed against any Party by reason of such Party being deemed to have drafted such provisions or the Agreement. Where agreement, approval, acceptance, consent or similar action by either Party is required by any provision of these Terms, such action shall not be unreasonably delayed or withheld.
    • 15.13. Survival. The provisions of Sections 4 (Fees and Billing Procedures), 5 (Confidential Information), 6 (Work Product and Intellectual Property Rights), 10 (Non-Solicitation of Employees), 11 (Indemnification), 12 (Limitation of Liability), 13 (Dispute Resolution), and 15 (Miscellaneous) of these Terms and any provision of these Terms which, by its nature, should survive termination or expiration of an SOW or the Agreement, will survive any such termination or expiration.