These Terms of Service (“Terms of Service”) constitute the terms and conditions that govern the relationships between Incado Partners, LLC (“INCADO PARTNERS”), and their clients (each a “Client”) who agree to receive professional finance and accounting consulting services from INCADO PARTNERS by entering into an INCADO PARTNERS Services Agreement. These Terms of Service are expressly incorporated into each Services Agreement.  The professional services provided by INCADO PARTNERS under a Services Agreement may be generally defined hereinafter as the “Services.” All capitalized terms not otherwise defined herein shall have the meaning assigned to them in the Services Agreement.  By signing a Services Agreement or otherwise receiving any Services from INCADO PARTNERS, Client agrees to be bound by these Terms of Service.  

1. Relationship of the Parties. In providing the Services, INCADO PARTNERS (and its representatives) will be acting as an independent contractor and not as an agent, partner, employee or representative of Client. Nothing in the Services Agreement or these Terms of Service shall be implied to signify a partnership, joint venture, employment relationship, or fiduciary relationship between the parties.

2. Confidentiality of Client Information. In connection with the provision of the Services, INCADO PARTNERS may require access to Client’s books, records, and other information regarding Client, which shall be provided by Client or Client’s designated third-party representatives (“Client Information”).  Except as consented to in writing by Client or as required by applicable law or court order, INCADO PARTNERS will make commercially reasonable efforts to maintain the confidentiality of all Client Information, and will use the Client Information for the sole purpose of providing the Services; provided, however, that no confidentiality obligations will apply to Client information that is publicly available or was rightfully obtained from a third party.  Any work product created by INCADO PARTNERS while providing the Services and paid for by Client will be the property of Client.  INCADO PARTNERS agrees to control the use and disclosure of Client Information with diligence and care, and to treat the Confidential Information with the same level of protection as it affords its own confidential information of a similar nature.  INCADO PARTNERS may share Client Information with its agents and representatives who reasonably need to know such information for purposes of performing INCADO PARTNERS’s obligations under the Services Agreement.

3. Reliance on Client Information. INCADO PARTNERS will rely on the Client Information provided by Client to perform the Services and will not verify or audit Client Information.  Accordingly, it is Client’s sole responsibility to ensure that Client Information is accurate and complete, and to inform INCADO PARTNERS promptly of any suspected error.   Services provided by INCADO PARTNERS are not intended to discover inherent errors in Client Information; however, INCADO PARTNERS may inform Client if any such errors are discovered.  INCADO PARTNERS shall not be liable, in any manner, to any third party or any governmental authority, and Client shall defend, indemnify and hold INCADO PARTNERS harmless from and against, any claims, damages, causes of action, or criminal fines or penalties relating to, arising out of, or concerning any errors or mistakes in any work product, or any other failure in the performance of the Services that relates to, arises out of, or is caused by Client’s failure to deliver accurate, complete, and timely Client Information to INCADO PARTNERS.  Client agrees to deliver all relevant Client Information to INCADO PARTNERS on a timely basis as requested by INCADO PARTNERS.  To the extent INCADO PARTNERS does not receive necessary Client Information within the timeframes requested, which delays INCADO PARTNERS’s delivery or completion of the Services, Client will nonetheless remain responsible for the payment of all fees and expenses required under the Services Agreement arising out of the Services.

4. Fees.  Fees will be paid in advance of the performance of Services and in accordance with the Services Agreement signed by Client.  Clients who agree to a monthly retainer will be provided the date funds must be placed on account before work will be performed.  For Clients who hire INCADO PARTNERS to perform Services on an hourly basis, or for Clients on retainer who hire INCADO PARTNERS for Additional Services, Fees will be charged on an hourly basis and an amount will be billed in advance for the estimated number of hours established with Client.

5. Past Due Collection Costs. All fees and expenses required to be paid by Client to INCADO PARTNERS as a result of the Services shall be due according to the payment terms agreed upon in the Services Agreement, including the imposition of late fees after 30 days late and calculated at a rate of 1.00% of total amount due per 30 days late. Client understands and agrees that if Client fails to pay any outstanding invoices following written notice from INCADO PARTNERS, INCADO PARTNERS may: (i) assign the outstanding balance to a collections agency; (ii) report Client’s non-payment to the credit bureaus; and/or (iii) file a civil legal action to collect the amounts owing.  Client agrees to pay all costs incurred by INCADO PARTNERS in collecting any unpaid fees and expenses, including all collection agency fees and costs, all court costs, witness and expert witness fees, filing fees and reasonable attorneys’ fees; whether incurred prior to, during or subsequent to any mediation, arbitration, litigation, bankruptcy, receivership, liquidation, collection or appellate proceeding.

6. Termination of Services. Either party may terminate the Services Agreement (a) for any reason with at least thirty (30) days prior written notice to the other party; (b) with cause following seven (7) days prior written notice to the other party regarding the other party’s material breach of any covenant, obligation, representation or warranty of the Services Agreement or these Terms of Service; or (c) with cause immediately in the event of any act of fraud, gross negligence, reckless or willful misconduct (including any actions of Client that would be detrimental to INCADO PARTNERS reputation and goodwill), felonious conduct, or in the event the other party is insolvent or files for bankruptcy. In the event of any termination, Client shall be responsible for all fees and costs incurred for INCADO PARTNERS’s performance of the Services up to the date of termination. The confidentiality obligations of INCADO PARTNERS set forth in Section 2 of these Terms of Service shall survive for a period of two (2) years after the termination of the Services Agreement or completion of the Services.

7. No Public Disparagement. Client will at no time, including the period after Termination of Services, publicly disparage the INCADO PARTNERS, or its employees, agents, officers or representatives or Client’s respective associations with INCADO PARTNERS, its services, or others connected or affiliated with the Company.

8. Return or Deletion of Client Information. Upon termination of the Services Agreement for any reason, INCADO PARTNERS will promptly return, or, at the election of Client, delete, all Client Information and other property of the Client, if any, then in INCADO PARTNERS’s possession or control. Client acknowledges and understands that INCADO PARTNERS’s policy is to delete, destroy or dispose of all communications and Client files and records (including but not limited to emails) that are non-essential for the on-going performance of Services after twelve (12) months of receipt or last use. Client is advised to save all of its own work, data and records on its own system in order to keep such documentation intact.  INCADO PARTNERS shall have no obligation to maintain records for Client other than what is necessary to perform the Services.  Notwithstanding anything else herein to the contrary, INCADO PARTNERS, at its sole discretion, may retain copies of its work product and supporting information for its records. Under no circumstances will INCADO PARTNERS be considered a “custodian of records” under the Rules and Regulations of the US Securities & Exchange Commission. Further, if Client utilizes a storage system for storing its records and data, INCADO PARTNERS shall not be the creator or controller of such system.  Client may allow INCADO PARTNERS access to such storage system for purposes of providing the Services, but access and authorization to access such storage system shall return fully and exclusively to Client upon completion of the Services or termination of the Services Agreement.

9. Indemnification by Client. Except to the extent caused by the gross negligence, fraud or willful misconduct of INCADO PARTNERS, Client agrees to indemnify, defend and hold INCADO PARTNERS harmless from and against all claims, damages, causes of action, fines and penalties (collectively, “Claims”) from any third-party or governmental entity relating to, concerning or arising out of: (i) the Services; (ii) third-party reliance upon INCADO PARTNERS’s work product, including but not limited to banks, leasing companies, financing companies or taxing authorities; (iii) late or missed public entity filings or deadlines caused by past-due invoices, insufficient retainer balances or any other cause of INCADO PARTNERS work stoppage permitted in the Services Agreement, these Terms of Service, or applicable law; or (iv) any infringement of any intellectual property or trade secrets by reason of Client Information or work product based upon such Client Information.  Client agrees to assume full financial responsibility for the payment of any loss, liability or expense (including but not limited to reasonable attorneys’ fees) incurred by INCADO PARTNERS in connection with any such Claim and the defense or settlement of any such Claim.   This Section shall survive termination of the Services Agreement. INCADO PARTNERS may direct the defense and settlement of any such Claim with counsel of INCADO PARTNERS’s choosing, and Client will provide INCADO PARTNERS with reasonable assistance, as requested.  INCADO PARTNERS shall not be liable for any settlement of an action effected without its written consent, which consent shall not be unreasonably withheld.

10. Indemnification by INCADO PARTNERS. Subject to Section 12 below, INCADO PARTNERS agrees to indemnify, defend and hold Client harmless from and against all Claims from any third party or governmental entity relating to, concerning or arising out of (i) physical injury to or destruction of Client’s property during the performance of the Services by INCADO PARTNERS; (ii) gross negligence in INCADO PARTNERS’s work product; or (iii) any infringement of any intellectual property or trade secrets by INCADO PARTNERS during the course of performing the Services.   Subject to Section 12 below, INCADO PARTNERS agrees to assume full financial responsibility for the payment of any loss, liability or expense (including but not limited to reasonable attorneys’ fees) incurred by Client in connection with any such Claim and the defense or settlement of any such Claim.  This Section shall survive termination of the Services Agreement.  Client may direct the defense and settlement of any such Claim with counsel of Client’s choosing, and INCADO PARTNERS will provide Client with reasonable assistance, as requested.  Client shall not be liable for any settlement of an action effected without its written consent, which consent shall not be unreasonably withheld.

11. Limited Warranty. INCADO PARTNERS represents and warrants that it will perform the Services in a diligent, professional and competent manner in accordance with industry standards, utilizing personnel with a level of skill proportionate with the Services to be performed. INCADO PARTNERS MAKES NO OTHER REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SERVICES, AND HEREBY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF ACCURACY, QUALITY, FREEDOM FROM ERROR, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY INCADO PARTNERS, ITS AGENTS, OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE LIMITED WARRANTY PROVIDED HEREIN.   INCADO PARTNERS may, while providing the Services, provide advice or opinions regarding the outcome of certain matters or predictions of future outcomes or performance.  Although INCADO PARTNERS will make reasonable efforts to ensure the accuracy of such advice or opinions, future outcomes or performance are naturally uncertain and therefore cannot be guaranteed.

12. Funding Applications.  If Client requests INCADO PARTNERS to assist Client with any application for loans, grants or other funding (“Funding Application”), INCADO PARTNERS is entitled to rely on information provided by Client to complete the Funding Application and shall not be held liable for any inaccuracies, misstatements or mistakes on any Funding Application. It is the sole responsibility of Client to ensure that the Funding Application has correct and complete information.  Further, INCADO PARTNERS does not and cannot guarantee that a Funding Application will be accepted or that funding will be granted.

13. Non-Solicitation. During the term of the Services Agreement, and for a period of one (1) year following termination thereof, Client shall not solicit for employment or hire, either directly or indirectly (as an employee, contractor or otherwise), any employee, former employee, agent, consultant, contractor, or other representative of INCADO PARTNERS. In the event that Client does solicit, hire, or retain on an employment, contractor or subcontractor basis, an employee or contractor of INCADO PARTNERS in violation of this Section, Client agrees to pay INCADO PARTNERS a Placement Fee of $250,000 per hire within thirty (30) days of the start date of such individual.

14. Limitation of Liability. IN NO EVENT WILL INCADO PARTNERS BE LIABLE TO CLIENT FOR ANY SPECIAL, INCIDENTAL, INDIRECT, RELIANCE, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS), WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, WHETHER OR NOT INCADO PARTNERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.  MOREOVER, INCADO PARTNERS’S TOTAL LIABILITY UNDER THE SERVICES AGREEMENT AND THESE TERMS OF SERVICE SHALL BE LIMITED TO PROVEN DIRECT DAMAGES NOT TO EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY CLIENT TO INCADO PARTNERS PURSUANT TO THE SERVICES AGREEMENT.

15. Basis of the Bargain. The limited warranty and disclaimer, exclusive remedies, and damages cap set forth above are fundamental elements of the basis of the agreement between INCADO PARTNERS and Client.  INCADO PARTNERS would not be able to provide the Services to Client on an economic basis without such limitations.  Furthermore, the limitations or exclusions of warranties, remedies or liability contained in these Terms of Service shall apply only to the extent permissible under applicable law, which may vary from state to state.

16. Force Majeure. If the performance of the Services or any other obligation under the Services Agreement or these Terms of Service is prevented, restricted, or interfered with by causes beyond a party’s reasonable control (“Force Majeure”), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrences, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, and/or work stoppages.  The excused party shall use reasonable efforts under the circumstances to avoid or remove such cause of nonperformance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased.

17. Integration and Severability. The Services Agreement and these Terms of Service represent the complete and exclusive agreement between INCADO PARTNERS and Client and supersedes all prior communications, whether written or oral, relating to the subject matter hereof.  No amendment or modification to the Services Agreement shall be valid or binding upon the parties unless in writing and signed by each party. No course of conduct shall be deemed to constitute an amendment or modification, and no waiver shall be deemed a continuing waiver unless agreed to in writing by the party to be charged therewith. If any provision of the Services Agreement or these Terms of Service is determined by a court of competent jurisdiction to be invalid or incapable of being enforced, such provision shall be excluded to the extent of such invalidity or unenforceability.  All other terms hereof and thereof shall remain in full force and effect.

18. Assignment.  Neither party may assign or transfer any right or obligation in connection with the Services Agreement without the prior written consent of the other party; provided, however that, upon written notice to Client, INCADO PARTNERS may assign the Services Agreement or transfer its rights and obligations hereunder to any affiliate that INCADO PARTNERS controls, is controlled by, or is under common control with, or to a party that acquires all or substantially all of INCADO PARTNERS’s assets.

19. Modifications. These Terms of Service may be amended and updated from time to time at the sole discretion of INCADO PARTNERS. Modified versions of these Terms of Service will be considered effective as of the date and time posted to INCADO PARTNERS’s website.  Client’s continued use of the Services after such modifications are posted will signify Client’s continued acceptance of, and agreement to be bound by these Terms of Service, as modified.

20. Dispute Resolution. Upon written notice of any dispute that arises out of or relates to the Services Agreement or these Terms and Conditions, the parties shall attempt to resolve it promptly by negotiation between the parties who have authority to settle the Dispute. This process should be completed within 30 days (“Negotiation”). If the Dispute cannot be settled through Negotiation, the parties agree first to try in good faith to settle the Dispute by mediation lasting at least one day and conducted by a Rule 31 Mediator and to be held in Nashville, Davidson County, Tennessee before resorting to arbitration, litigation or some other dispute resolution procedure. The process shall be confidential based on terms acceptable to the mediator. Any Dispute not resolved through Negotiation or Mediation shall be resolved by final and binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitration will be held in Nashville, Davidson County, Tennessee using one arbitrator. The parties understand that arbitration is final and binding and that they are waiving their rights to other resolution processes such as court action, which may provide a right to a jury trial and the opportunity to take witness testimony prior to such a proceeding, or administrative proceeding.

21. Attorneys’ Fees and Costs.  In the event of any Dispute regarding the interpretation or enforcement of the Services Agreement or these Terms of Service, the prevailing party in such dispute shall be entitled to recover from the other party its costs and expenses incurred in such dispute, including reasonable attorneys’ fees, mediation/arbitration costs, and expert witness fees, the amount of which shall be fixed by the mediator/arbitrator and made a part of any judgment rendered.