TERMS OF SERVICES
Last Updated June 11, 2024
Credex Advisors, LLC (“Credex Advisors”) is pleased to confirm our understanding of the services we are to provide for the purchasing party (the “Client” or the “Company as defined by the Order form), and the company being evaluated (the “Target”). This agreement confirms our understanding of the terms and objectives of our engagement and the nature and limitations of the services we will provide.
Services Provided
We will perform procedure in accordance with the Clients order form, as agreed upon between Credex Advisors and the Client, as requested.
Our Responsibilities and Limitations
Unless otherwise provided herein, this engagement will be conducted in accordance with the Statement on Standards for Consulting Services established by the American Institute of Certified Public Accountants (“AICPA”). Client specifically acknowledges and agrees to the following with respect to the services provided: a) In connection with the services provided, Credex Advisors shall be entitled to rely on all representations, warranties, information, decisions, consents and approvals provided by the Client, the Target, and their respective advisors. Client agrees that the performance of the services is entirely dependent upon Client, the Target, and their respective advisors providing Credex Advisors with complete and accurate materials and information in a timely manner and answering all questions fully and accurately. Credex Advisors has no responsibility for the accuracy or completeness of the information it receives from the Client, the Target, or their respective advisors. This engagement cannot be relied upon to disclose theft, errors, fraud, or illegal acts, should they exist.b) The performance of the due diligence procedures does not constitute and will not result in a tax opinion, an audit conducted in accordance with generally accepted auditing standards, an examination of any type, an accounting or auditing opinion, any other attestation or review service in accordance with standards or rules established by the AICPA, the Public Company Accounting Oversight Board (the “PCAOB”), any taxing authority or other regulatory body, or as adding credibility to the subject matter provided by the Target. Accordingly we will not express an opinion, recommendation, or any other form of assurance either in writing or orally (and, in each case, the Client will not assert in any context that Credex Advisors has made such an opinion, recommendation or any other form of assurance) with respect to any matters as a result of the performance of the services provided, including, without limitation, concerning the (i) financial statements of the Target or any financial or other information taken as a whole, for any date or period; (ii) merits of the proposed acquisition, including, without limitation, the consideration to be paid or whether any particular business or asset should be acquired or financed; (iii) future operations or solvency of the Target; (iv) fairness of the contemplated terms of the proposed acquisition; or (v) the market or financial feasibility of the proposed acquisition. c) In the performance of the due diligence procedures, Credex Advisors will not perform any evaluation of internal controls and procedures for financial reporting upon which Client’s management can base its assertion in connection with the Sarbanes-Oxley Act of 2002 (the “Act”) or related rules or regulations, and, the Client will not assert in any context that Credex Advisors has performed any such evaluation. More specifically, but without limiting the previous sentence, Credex Advisors will make no representations or warranties, and Credex Advisors will provide no assurances (and the Client will not assert in any context that Credex Advisors has made such representations, warranties or assurances) with regards to whether or not the Target has in existence the necessary internal controls over financial reporting, whether such internal controls are designed appropriately, or whether such controls are operating effectively; in each case, as such concepts, are set forth in the Act and/or any other standards or rules. It is management's responsibility to establish and maintain internal controls, to comply with the requirements of the Act and/or any other standards or rules, and to identify, implement and execute any procedures deemed necessary to comply with the foregoing provisions. The due diligence procedures should not supplant inquiries and procedures that management should make in connection with current or future compliance with the provisions of the Act and/or other standards or rules. d) The Target’s financial statements, including, without limitation, the application of generally accepted accounting principles (“GAAP”) to record the effects of the proposed acquisition, are the responsibility of management of Target. Accordingly, any comments made by Credex Advisors relating to the accounting or tax treatment of selected balances or transactions or the application of GAAP or the technical merits of the tax positions and planning strategies related to Target and the proposed acquisition as a whole are intended to serve only as general guidance to assist Client to better understand certain accounting or tax matters related to the Target and the effects of the proposed acquisition. Such comments are necessarily based on the preliminary understanding by Credex Advisors of the pertinent facts and circumstances and on current authoritative literature and are, therefore, subject to change.
e) Credex Advisors shall have no obligation to report observations or comments on other matters noted outside of the due diligence procedures including, without limitation, on tax or internal control matters further described herein in c) above, unless either expressly provided for in this Agreement or expressly agreed to in writing.
f) The services provided do not constitute (i) a recommendation regarding the acquisition or financing of any business, assets, liabilities, or securities; (ii) a market or financial feasibility study; (iii) a fairness or solvency opinion; or (iv) an examination or compilation of, or the performance of agreed upon procedures with respect to, prospective financial information in accordance with standards or rules established by the AICPA, the PCAOB, or other regulatory body.g) It is understood that Credex Advisors cannot and will not provide, nor be responsible for providing, legal advice hereunder.
h) It is understood that the due diligence procedures and our Deliverables (as defined below) are not intended to be, and shall not be construed to be, “investment advice” within the meaning of the Investment Advisers Act of 1940.
i) Financial forecasts are the responsibility of management of Client and/or Target, as applicable. In this regard, management of Client and/or Target, as applicable, is responsible for representations about its plans and expectations and for disclosure of significant information that might affect the ultimate realization of its forecasted results. In contrast, Credex Advisors has no responsibility for the preparation, content, or achievability of the results forecasted, and the Client will not assert in any context that Credex Advisors has such a responsibility. It is understood and agreed, and Client will not assert to the contrary, that for purposes of any consultative observations provided by Credex Advisors relating to any forward looking information of Client or Target, such observations may be affected by the underlying assumptions or estimates, which inherently may be uncertain, and, though considered reasonable by management of Client and/or Target, as applicable, as of the date of its preparation, may be subject to a wide variety of business, economic, competitive, and other risks and uncertainties that may cause actual results to differ materially from those contained in any such forward looking information.
j) It is understood that the due diligence procedures may include access to the work of Target’s and/or Client’s advisors, including, without limitation, public accounting firms, or to financial statements, financial information, or data reported on by such advisors. In this regard, we call Client’s attention to the possibility that advisors may perform procedures concerning the same information or data, and perhaps the same accounts and records, and reach different observations than us for a variety of reasons, including the possibility that additional or different information or data might be provided to them that was not provided to us, that they might perform different procedures from us, or that professional judgments concerning, among others, complex, unusual, or poorly documented matters may differ. k) Any tables aggregating our comments and observations of quantified vulnerabilities and sensitivities of prospective financial information included in the Deliverables (as defined below) do not represent restatements of the prospective financial information, or revised prospective financial information; they are provided as a means of summarizing our comments and to assist you with your evaluation of the prospective financial information.
l) In no event shall Credex Advisors be compelled to reissue any final report after such final report is provided by Credex Advisors to Client. However, in the event such final report is reissued by Credex Advisors in Credex Advisors’s sole discretion, (i) Credex Advisors shall have no obligation to update any final report in any way or perform any services related thereto; and (ii) the terms and conditions of this Agreement shall govern the terms and conditions upon which such final report is reissued unless otherwise expressly provided to the contrary in a writing that references this Agreement.
m) The working papers prepared in conjunction with our engagement are the property of our Firm and constitutes confidential information. However, we may provide working papers if we believe we are required to disclose such working papers pursuant to law, regulation, or professional obligation.
Client’s Responsibilities
Client represents that Client is a sophisticated investor that is skilled and experienced in evaluating, structuring, and completing transactions such as the proposed acquisition. Client shall be solely and exclusively responsible for, among other things: (i) making all management decisions and performing all management functions, including, without limitation, all decisions related to the proposed acquisition; (ii) designating a knowledgeable employee, preferably within senior management, to oversee the due diligence procedures on behalf of Client; (iii) evaluating the adequacy of the due diligence procedures and the contents of any Deliverable (as defined below); (iv) accepting responsibility for results of the due diligence procedures; (v) determining the full scope of the Client’s due diligence procedures, which will go beyond the engagement of Credex Advisors; (vi) performing additional procedures, prior to concluding on the merits of the proposed acquisition; and (vii) obtaining all necessary authorizations and consents from the Target and its advisors, including, without limitation, the Target’s independent accountants and other representatives, in order to permit Credex Advisors to perform the services, including disclosure of Target’s confidential information to Credex Advisors in connection with the proposed acquisition.
Client is responsible for collecting and submitting all relevant data to Credex Advisors to faciality the deliverables.
The due diligence procedures are limited in nature, and do not comprehend all matters relating to the Target that might be significant, material, pertinent or necessary to Client’s evaluation of the proposed acquisition. Accordingly, the due diligence procedures should not be taken to supplant other inquiries and procedures that Client should undertake in connection with the proposed acquisition.
In addition, the nature and scope of pre-acquisition consulting services may vary significantly depending upon the judgment of each Client (including, without limitation, the level of risk that Client is willing to accept) and the type of transaction that is being contemplated. Consequently, Credex Advisors will make no representation as to the sufficiency of the services provided for which our findings have been requested by the Client or any other purpose. In addition, Credex Advisors has no responsibility for performing any services or procedures beyond those noted in the services provided section above or for updating the services performed.
At the conclusion of our engagement, we may request certain written representations from Target’s management to confirm oral representations given to us, and to indicate and document the continuing appropriateness of such representations and reduce the possibility of misunderstanding concerning matters that are the subject of the representations. We will also request that Target’s management represent to us the Target’s responsibility for the accuracy and fairness of the financial statements, or any element, accounts or items thereof.
Use of Deliverables
Because of the nature of the proposed acquisition, you will likely request that Credex Advisors communicate with you in a variety of instances and manners regarding our observations and/or findings resulting from the services provided. It is likely that some, or all, of these communications will not be in writing and/or in a formal report. Any communication, information, documents, memoranda or reports of any kind provided by Credex Advisors, in every case, whether oral or written, draft or final, are collectively referred to herein as the “Deliverables”. All Deliverables are necessarily limited by the services performed and are subject to the terms of this Agreement.
Client agrees that the Deliverables are solely for Client’s informational purposes and internal use in connection with the proposed acquisition, and are not intended to be relied upon by or for the benefit of any other person or entity. Client further agrees that none of the Deliverables shall be circulated, quoted, disclosed, or distributed to, nor will reference to any of the Deliverables be made to, anyone who is not (1) an employee with a need to know, a member of management, or a member of the board of directors of Client, who may use the Deliverables solely for purposes of Client’s evaluation of the proposed acquisition; or (2) a legal or other professional advisor of Client acting strictly in an advisory capacity to Client, that has no economic or financial interest in the consummation of the proposed acquisition (the “Advisor”), who may use the Deliverables solely to advise Client in connection with the proposed acquisition. Client shall ensure that the Advisor does not further circulate, quote, disclose, or distribute any of the Deliverables, or refer to Credex Advisors in connection with the proposed acquisition or any related transaction.
In addition, Client agrees that it will not refer, generically, by name or otherwise to Credex Advisors or the services provided orally or in any written materials relating to the proposed acquisition (the “Written Materials”), including, without limitation, any publicly filed documents, without our prior written consent, which may be withheld in our sole and absolute discretion. Notwithstanding the foregoing, the Client may refer orally to Credex Advisors’s performance of the services provided and/or provide the Written Materials solely to an employee, member of management, or a member of the board of directors of Client who: a) has a need to have such Written Materials for internal business purposes; and b) is restricted from further disclosures of the Written Materials by a reasonable and customary non-disclosure agreement. Client assumes any and all liability that results from the disclosure of Written Materials provided for herein, even if Credex Advisors consents to such disclosures.
Client also agrees that Credex Advisors may reference its involvement with this transaction in Credex Advisors marketing materials, including but not limited to a) listing Client as a Transaction Advisory Services client of Credex Advisors, and b) producing a tombstone advertisement that includes the logos of both Client and Target, and describes the parties involved in the transaction, the nature of the transaction, and Credex Advisors’s role in the transaction.
In addition, notwithstanding anything to the contrary contained in this letter, except as otherwise provided in the last sentence of this paragraph, Client may provide the Report findings to other third parties acceptable to us, provided that prior to such disclosure (1) Credex Advisors consents in writing to disclosure to such third party; (2) in the case of a lender, Client has executed an agreement authorizing, among other things, Credex Advisors to disclose information to such third party; and (3) in the case of a lender, such third party has executed a lender access letter. Client acknowledges and agrees that it and such third party shall be solely responsible for the determination of whether and what information is provided by Client to such third party and Credex Advisors shall have no responsibility therefor. In addition, Client acknowledges and agrees that it shall not permit any third party to have access to any Client Deliverables or Report findings following the consummation of the Proposed Transaction and expressly agrees to indemnify, hold harmless and release Credex Advisors from any and all liability that results from such third party disclosure.
Client acknowledges and agrees that Credex Advisors will suffer irreparable damage for which money damages will not be sufficient remedy in the event of a breach of the Use of Deliverables provisions of this letter. Credex Advisors shall be entitled to specific performance and injunctive relief as remedies for any breach or threatened breach of any such provision of this letter, which remedies shall not be deemed to be exclusive remedies for such breach or threatened breach by Client, but shall be in addition to all other remedies available to Credex Advisors at law or in equity.
E-Mail Communication
In connection with this engagement, we may communicate with you or others via email. As emails can be intercepted and read, disclosed, used, and/or otherwise 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 ensure 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 or communication of email transmissions, or for the unauthorized use or failed delivery 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 arising from the use of email, including any punitive, consequential, incidental, direct, indirect, or special damages, such as loss of revenues or anticipated profits, or disclosure or communication of confidential or proprietary information.
Independent Contractor
It is understood and agreed that each of the parties hereto is an independent contractor and that neither party is, nor shall be considered to be, an agent, distributor, partner, fiduciary, or representative of the other. Neither party shall act or represent itself, directly or by implication, in any such capacity in respect of the other or in any manner assume or create any obligation on behalf of, or in the name of, the other.
Third Parties and Use of Tax Planning Advice
With regard to tax services, if any, provided orally or in writing by Credex Advisors, or its personnel under the engagement letter to which these terms are attached related to the tax structure and tax treatment (as defined in Internal Revenue Code Sections 6011 and 6111 and related Internal Revenue Service guidance) of the Proposed Transaction (collectively referred to as “Tax Planning Advice”), Credex Advisors hereby acknowledges and agrees that nothing contained in such engagement letter shall be construed as limiting or restricting disclosure of the Tax Planning Advice or any significant tax feature thereof for purposes of Rule 3501(c)(i) of PCAOB Release 2005-014, Internal Revenue Code Sections 6011 and 6111, and related Internal Revenue Service guidance. It is understood that none of Client’s tax advisors will impose or have imposed any conditions of confidentiality upon Client’s disclosure of the tax treatment or tax structure associated with the tax services or transaction(s) associated with this engagement. Except as otherwise provided in this paragraph , all Tax Planning Advice provided in connection with this engagement shall be solely for Client’s informational purposes and internal use, and this engagement does not create privity between Credex Advisors and any person or entity other than Client. The advice, opinions, reports, and other services of Credex Advisors relating to the Tax Planning Advice are not intended to be relied upon by or for the benefit of any person or entity other than Client.
Detection
This engagement will not include any procedures designed to detect theft or illegal acts that are immaterial to the financial statements and the Client agrees that we will have no responsibility to do so.
Employment
In the event you desire to employ a current employee of Credex Advisors, LLC or a previous employee of Credex Advisors, LLC whose termination date is within 6 months of the date services were provided to you by us, you agree to consult with us concerning such employment. In addition, if you employ such employee, you agree Credex Advisors, LLC has the option to receive a reasonable placement fee from you, in an amount determined by us not exceeding 100% of employee’s annual compensation at the time of termination.
Legal Fees
In addition to the fees for services described in this agreement, the Client agrees to pay legal fees incurred in connection with any suit to recover fees due from you on this engagement or to enforce the terms of this Agreement, and legal fees incurred by Credex Advisors, LLC in responding to any third-party request for production and/or subpoenas and/or depositions or other testimony related to your records and our work done for you in connection with an engagement thereon.
Limitations of Liability
Credex Advisors, LLC’s maximum liability to the Client for any reason shall be limited to the fees paid by the Client for the services or work product giving rise to the liability except and to the extent finally determined to have resulted from our willful misconduct. Without limiting the foregoing, Credex Advisors, LLC’s liability under this agreement is limited to the actual and direct damages incurred by the Client arising out of or related to Credex Advisors, LLC’s performance hereunder. In no event shall Credex Advisors, LLC be liable for any incidental, consequential, special, indirect, punitive or third-party damages or claims, including, without limitation, lost profits or revenue, lost savings, lost productivity, loss of data, loss of use of equipment and loss from interruption of business, regardless of whether the form of action is based upon breach of warranty, breach of contract, negligence, strict liability in tort or any other legal theory even if Credex Advisors, LLC has been advised about the possibility of such damages. Credex Advisors, LLC’s members, principals and employees shall have no liability or obligations arising out of this engagement letter. Client agrees that should Client bring any claim or other legal proceeding of any nature arising from the services provided pursuant to this engagement letter, such claim or legal proceeding shall only be pursued against Credex Advisors, LLC.
Indemnity
The Client agrees to release, defend, indemnify and hold Credex Advisors, LLC and its members, managers, officers and employees and the respective heirs, executors, personal representatives, successors, and assigns of each of them harmless from any and all claims which arise from knowing misrepresentations to Credex Advisors, LLC by the Client, including its management, board of directors, employees and other duly authorized representatives, or intentional withholding or concealment of information from Credex Advisors, LLC by the Client.
Dispute Resolution
By signing this agreement, you agree that any controversies, issues, disputes or claims (“Disputes”) arising out of or relating to this Agreement, or any services provided by Credex Advisors, LLC, shall be RESOLVED EXCLUSIVELY BY BINDING ARBITRATION administered by the American Arbitration Association (the “AAA”) in accordance with the Commercial Arbitration Rules of the AAA then in effect; provided, that, by written notice delivered to you prior to or after the initiation of any arbitration claim, Credex Advisors, LLC as the defendant in a Dispute may elect (a) that the Dispute shall be resolved pursuant to litigation in an Agreed Court (as defined below) and/or (b) submitted to nonbinding mediation prior to the commencement or continuation of an arbitration claim or lawsuit. If any Dispute is not arbitrated for any reason, (i) any litigation, proceedings or other legal actions related to a Dispute shall be instituted in the courts in the state of the service provider, or if it has jurisdiction, a Federal court in Atlanta, Georgia (the “Agreed Courts”) and (ii) the parties, for themselves and their successors and assigns, hereby WAIVE TRIAL BY JURY OF ANY DISPUTE. Each party to this Agreement irrevocably submits to the exclusive jurisdiction of the Agreed Courts in connection with any such litigation, action or proceeding. Each party to this Agreement irrevocably waives, to the fullest extent permitted by applicable law, any defense or objection it may now or hereafter have to the laying of venue of any proceeding brought in the Agreed Courts, and any claim that any proceeding brought in any such court has been brought in an inconvenient forum. The parties acknowledge that (x) they have read and understood the provisions of this agreement regarding arbitration and (y) performance of this agreement will be in interstate commerce as that term is used in the Federal Arbitration Act, 9 U.S.C. § 1 et seq., and the parties contemplate substantial interstate activity in the performance of this Agreement including, without limitation, interstate travel, the use of interstate phone lines, the use of the U. S. mail services and other interstate courier services.
Conditions Precedent
Client agrees that Credex Advisors, LLC shall have no liability under this Agreement or arising under this engagement unless written notice of Credex Advisors, LLC’s alleged liability shall have been given by Client to Credex Advisors, LLC within one (1) year following the later of (i) the date the Client is informed of the engagement’s termination or, (ii) the last date services were provided to the Client. If the matter cannot be resolved amongst Credex Advisors, LLC and the Client within thirty (30) days of the date of such written notice (or such longer period as the parties may agree to in writing), the parties shall participate in non-binding mediation before any litigation or other dispute resolution proceeding is commenced (unless the parties jointly agree in writing to waive this requirement).
Invalidation
In the event that any portion of this agreement is deemed invalid or unenforceable, said finding shall not operate to invalidate the remainder of this agreement.
Disclosure
We may, from time to time and depending on the circumstances, use third-party service providers in serving your account including service providers located outside of the United States. We may share confidential information about you with these service providers, but remain committed to maintaining the confidentiality and security of your information. Accordingly, we maintain internal policies, procedures, and safeguards to protect the confidentiality of your personal information. In addition, we will secure confidentiality agreements with all service providers to maintain the confidentiality of your information and we will take reasonable precautions to determine that they have appropriate procedures in place to prevent the unauthorized release of your confidential information to others. Furthermore, we will remain responsible for the work provided by any such third-party service providers. By signing this letter, you consent to allow us to disclose your tax return information, if applicable, or other information to our service providers located abroad. If you want to limit the amount of information that may be disclosed to any third-party service provider, please notify us in writing by emailing info@credexadvisors.com
Use of Technology
Credex Advisors uses certain technologies to facilitate the sharing of data between the Client and Credex Advisors. In addition, Credex Advisors uses certain technologies to convert data. All technology used has been through the Credex Advisors procurement process and are SOC 2 Compliant. Client agrees that the data can be shared with the third party applications and then deleted once the engagement is completed.Credex Advisors is not designed to store Client information and documents. Client is responsible for maintaining backup to all Client data provided to and by Credex Advisors, LLC.
Term
This agreement shall survive the termination of the Client’s engagement of Credex Advisors, LLC.
Amendment
The terms and conditions of this agreement (i) apply exclusively to the services specifically set forth in the “Services Provided” section herein (the “Current Specified Services”) and do not apply to any other services specifically addressed in a separate Terms of Engagement entered into between Credex Advisors, LLC and the Client. This agreement replaces and amends all previous Terms of Engagement entered into between Credex Advisors, LLC and the Client for the services specifically set forth in the “Services Provided” section herein (the “Current Specified Services”). This agreement does not impose upon Credex Advisors, LLC any additional obligations or responsibilities with respect to any other Terms of Engagement entered into between Credex Advisors, LLC and the Client.
ELECTRONIC SIGNATURES Client agrees that their electronic signatures, whether digital or encrypted, provided in connection with these Terms or your use of the Services are intended to (a) authenticate the record or other writing to which such electronic signatures are affixed or are logically associated and(b) have the same force and effect as manual signatures. “Electronic signature”means any electronic sound, symbol, or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record, including without limitation confirmation or acceptance buttons found within the Services.
FEES AND PAYMENT
Fees and Payment Terms. Unless otherwise specified in an Order Form, all Fees are due upon execution of this Agreement. Fees for additional Services will be invoiced at the time of order, unless otherwise agreed in writing by the parties. All fees must be paid before any work will commence by Credex Advisors Unless expressly provided otherwise in an Order Form, all amounts payable under this Agreement are denominated in United States dollars, and you will pay all such amounts in United States dollars.
Credit Card. If you use a credit card to set up an account or pay for the Service, you must be authorized to use the credit card information that you enter when you create the billing account. You authorize us to charge you for the Service plus a reasonable processing fee using your credit card and for any paid feature of the Service that you choose to sign up for or use under this Agreement. We may bill: (a) in advance; (b) at the time of purchase; (c) shortly after purchase; or (d) on a recurring basis for a subscription to the Service.
Late Payment. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded monthly from the date due until the date paid. You will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by us to collect any amount that is not paid when due. Amounts due from you under this Agreement may not be withheld or offset by you against amounts due to you for any reason.
