The following standard terms and conditions apply to the agreement between National R&D Inc. (National) and you (the Client) except as otherwise included in the agreement letter to which these terms and conditions are attached (the agreement letter).
- Gathering and Verification of Information.
National will perform the services based on the information the Client provides to National. National will rely on that information to be accurate and complete and National will neither verify the information nor perform any procedures designed to discover errors or other irregularities in the information, although National may ask the Client to clarify or supplement such information. National will not independently verify financial statements or data submitted by the Client to allow National to neither perform services, nor will National review furnished working papers for technical and mathematical accuracy. The agreement of National cannot be relied upon to uncover errors in the underlying information incorporated in the Client’s tax returns or other information, should any exist.
- Review By Tax Authorities.
National will use professional judgment in resolving questions affecting the Client’s affairs relating to the tax services to be provided by National. Unless the Client instructs otherwise, National will take the position most favourable to the Client whenever reasonable. All returns are subject to examination by taxation authorities. National’s tax assistance may be audited and challenged by Canadian and other tax authorities, who may not agree with National’s positions. In this regard, you understand that the result of any tax assistance is not binding on tax authorities or the courts and should never be considered a representation, warranty, or guarantee that the tax authorities or the courts will concur with National’s advice or opinion. Any tax assistance provided by National will be based upon the law, regulations, cases, rulings, and other tax authority in effect at the time specific tax assistance is provided. If there are subsequent changes in or to the foregoing (for which National shall have no specific responsibility to advise the Client), you acknowledge that such changes may result in the tax assistance provided by National being rendered invalid or necessitate (upon your request) a reconsideration of that prior tax assistance.
The Client shall cooperate with National in the performance by National of its services hereunder, including, without limitation, providing National with reasonable facilities and timely access to data, information and personnel of the Client. The Client shall be responsible for the performance of its personnel and agents and for the accuracy and completeness of all data and information provided to National for purposes of the performance by National of its services hereunder.
- Payment of Invoices
All accounts shall be due and payable when rendered. It is the client’s responsibility to notify and provide National a copy of the notice of assessment as soon as it is received. Without limiting its rights or remedies, National shall have the right to halt or terminate its services entirely if payment is not received within forty five (45) days of the notice of assessment or reassessment date or the invoice date (whichever is earlier). Interest shall be charged on accounts unpaid after forty five (45) days after the date of the notice of assessment or reassessment or the invoice date (whichever is earlier). Interest shall be calculated and payable at the rate of 19.56% per annum (1.5% per month).
All fees and other charges do not include any applicable federal, provincial or other goods and services or sales taxes, or any other taxes or duties whether presently in force or imposed in the future. Any such taxes or duties shall be assumed and paid by the Client without deduction from the fees and charges hereunder.
Unless terminated sooner in accordance with its terms, this agreement shall terminate on the completion of National’s services hereunder. This agreement may be terminated by either party at any time in writing to the other party by providing 10 days written notice to National. In the event of termination pursuant to this paragraph, the Client agrees to compensate National under the terms of the agreement letter to which these terms are appended for services performed and expenses incurred through the effective date of termination, as well as for reasonable time and expenses incurred to bring our services to a close in a prompt and orderly manner. National has the right to terminate this agreement if the obligations of the Client are not fulfilled. Before exercising this right, National will provide the Client with 20 days notice to remedy such breach. If National exercises its right of termination, we will not be responsible for any loss, cost or expense resulting from such termination. Without limiting our rights or remedies, National has the right to suspend or terminate its services until payment is received on late invoices.
- Third Parties and Internal Use
Except as otherwise agreed in writing, all services in connection with this agreement shall be solely for the Client’s internal purposes and use, and this agreement does not create privities between National and any person or party other than the Client (“third party”). This agreement is not intended for the express or implied benefit of any third party. No third party is entitled to rely, in any manner or for any purpose, on the advice, opinions, reports, or other services of National. The Client further agrees that the advice, opinions and reports issued by National shall not be distributed to any third party without the prior written consent of National. National agrees that such consent will ordinarily be granted provided that the Client makes a specific written request of National and the third party seeking such materials executes an acknowledgement of non-reliance and a release acceptable to National.
To the extent that, in connection with this agreement, National comes into possession of any proprietary or confidential information of the Client, National will not disclose such information to any third party without the Client’s consent, except As may be required by law, regulation, judicial or administrative process, or in accordance with applicable professional standards, or in connection with litigation pertaining thereto, or (b) To the extent such information(i) shall have otherwise become publicly available (including, without limitation, any information filed with any governmental agency and available to the public) other than as the result of a disclosure by National in breach hereof(ii) is disclosed by the Client to a third party without substantially the same restrictions as set forth herein(iii) becomes available to National on a non-confidential basis from a source other than the Client which National believes is not prohibited from disclosing such information to National by obligation to the Client(iv) is known by National prior to its receipt from the Client without any obligation of confidentiality with respect thereto, or(v) is developed by National independently of any disclosures made by the Client to National of such information. Except as instructed otherwise in writing, each party may assume that the other approves of properly addressed fax, email (including email exchanged via Internet media) and voicemail communication of both sensitive and non-sensitive documents and other communications concerning this agreement, as well as other means of communication used or accepted by the other.
- Limitation on Liability and Indemnity
The Client and National agree to the following with respect to National’s liability to the Client: The Client agrees that National shall not be liable to the Client for any claims, liabilities, or expenses relating to this agreement for an aggregate amount in excess of the fees paid by the Client to National pursuant to this agreement, except to the extent finally judicially determined to have resulted from the bad faith or intentional misconduct of National. In no event shall National be liable for consequential, special, indirect, incidental, punitive or exemplary loss, damage, or expense relating to this agreement or any loss of revenue or profit or any other commercial or economic loss or failure to realize expected savings. In any action, claim, loss or damage arising out of the agreement, the Client agrees that National’s liability will be several and not joint and several and the Client may only claim payment from National of National’s proportionate share of the total liability based on the degree of fault of National as finally determined by a court of competent jurisdiction. The Client agrees to indemnify and hold harmless National and its directors, officers, partners, employees subsidiaries and affiliates from and against any and all claims, damages, costs, charges, liabilities and expenses claimed by any third party relating to the services provided by National except to the extent finally judicially determined to have resulted from the bad faith or intentional misconduct by National. The provisions of this Paragraph shall apply to the fullest extent of the law, whether in contract, statute, tort (such as negligence), or otherwise. This Paragraph shall survive termination or expiry of the agreement. The provisions of this Paragraph are not applicable to the extent that mandatory provisions of applicable regulatory bodies prohibit a professional tax advisor from limiting liability. For purposes of this Paragraph, “National” shall mean National and its directors, officers, partners, professional corporations, employees, subsidiaries and affiliates and to the extent providing services under the agreement letter to which these terms are attached, National, its member firms, and all of their partners, principals, members, owners, directors, staff and agents; and in all cases any successor or assignee.
- Unenforceable Provisions.
In case any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement, but this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein.
- Survival and Interpretation
The agreements and undertakings of the Client contained in the agreement letter, to which these terms are attached, together with the provisions of all Paragraphs hereof, (except for the “term” of the agreement) shall survive the expiration or termination of this agreement.
- Governing Law, Severability and Entire Agreement.
These terms, the agreement letter to which these terms are attached, including exhibits, and all matters relating to this agreement (whether in contract, statute, tort (such as negligence), or otherwise), shall be governed by, and construed in accordance with, the laws of the Province of Ontario and the laws of Canada applicable in Ontario. Any action or proceeding relating to this agreement shall be brought in the Province of Ontario, and the parties submit to the jurisdiction of the courts of the Province of Ontario and waive any defense of inconvenient forum to the maintenance of such action or proceeding. If any provision of such terms or agreement letter is found by a court of competent jurisdiction to be unenforceable, such provision shall not affect the other provisions, but such unenforceable provision shall be deemed modified to the extent necessary to render it enforceable, preserving to the fullest extent permissible the intent of the parties set forth herein. These terms and the agreement letter to which these terms are attached is the complete agreement between the parties with respect to the subject matter hereof and supercedes all prior and contemporaneous agreements, understandings, proposals, negotiations, representations or warranties of any kind whether oral or written.
Except as provided below, neither party may assign, transfer or delegate any of its rights or obligations hereunder (including, without limitation, interests or claims relating to this agreement) without the prior written consent of the other party. National may, without the consent of the Client, assign or subcontract its rights and obligations hereunder to (a) any affiliate or related entity or (b) any entity which acquires all or a substantial part of the assets or business of National.
- Working Papers
National retains ownership of the copyright and all other intellectual property rights in our advice and working papers. National is entitled to use or develop the knowledge, experience and skills of general application gained through performing this agreement.