Terms & Conditions

1. Applicability

    1. These terms and conditions for services (these “Terms”) are the only terms that govern the provision of internal audit services by White River Solutions, LLC d/b/a Cavendish Scott (“Service Provider”) to Client.
    2. These Terms comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and Client’s general terms and conditions, these Terms shall govern. Notwithstanding the foregoing, if Client has engaged Service Provider to provide consulting services pursuant to a consulting proposal, the terms of the consulting proposal shall control in the event of any conflict between these Terms and the consulting proposal.
    3. These Terms prevail over any of Client’s general terms and conditions regardless of whether or when Client has submitted its request for services, order, or such terms. Provision of services to Client does not constitute acceptance of any of Client’s terms and conditions and does not serve to modify or amend these Terms.

2. Services

Service Provider shall provide the annual internal audit services to Client as (the “Services”) in accordance with these Terms.

3. Estimated Completion of Work

    1. Service Provider shall use reasonable efforts to meet any performance dates as agreed to with Client. Time estimates shall not be of the essence of the contract unless otherwise specifically agreed in writing by Service Provider and Client.
    2. Where the Services require on-site visits to Client’s premises such visits will be arranged to ensure maximum use of Service Provider’s time on site. If visits are to be paid on a time basis, then a minimum of four (4) hours will be charged for a visit, unless travel time is also charged and in which case Client will be charged hourly.

4. Service Provider Obligations

Service Provider shall:

  1. Designate employees or contractors that it determines, in its sole discretion, to be capable of filling the following positions:
    1. A primary contact to act as its authorized representative with respect to all matters pertaining to the Services (the “Service Provider Contract Manager”); and
    2. A number of employees or contractors that it deems sufficient to perform the Services (collectively, with the Service Provider Contract Manager, “Provider Representatives”).
  2. Provide written notice to Client if any changes in Provider Representatives are made.  Service Provider may change Service Providers in its sole discretion with notice to the Client.

5. Client’s Obligations

Client shall:

  1. cooperate with Service Provider in all matters relating to the Services and provide such access to Client’s premises, and such office accommodation and other facilities as may reasonably be requested by Service Provider, for the purposes of performing the Services;
  2. respond promptly to any Service Provider request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Service Provider to perform Services in accordance with the requirements of the Services;
  3. provide such Client materials or information as Service Provider may reasonably request to carry out the Services in a timely manner and ensure that such Client materials or information are complete and accurate in all material respects. Service Provider shall not be liable to Client or to any third party for any loss of use, revenue, or profit, or loss of data, or diminution in value as a result of Client’s failure to provide materials or information to Service Provider in connection with Service Provider’s provision of Services;
  4. review the audit process, evidence, results, and conclusions, and determine whether the time and resources devoted to auditing is adequate to meet Client’s needs. Client acknowledges and agrees that an audit is a sampling activity, and Service Provider is unlikely to be able to look at all records in Client’s management system. Client further acknowledges and agrees that Services Provider is unable to evaluate items which are not presented to Service Provider, not available or not selected for audit and Client understands and agrees that it is possible that Service Provider may not see evidence of nonconformance during any such audit as a result; and
  5. obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.

6. Project Delays

If Service Provider’s performance of its obligations to provide the Services is prevented or delayed by any act or omission of Client or its agents, subcontractors, consultants, or employees, Service Provider shall not be deemed in breach of its obligations under these Terms or otherwise liable for any costs, charges, or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.

7. Work Outside the Scope of the Project

  1. If either party wishes to change the scope or performance of the Services, it shall submit details of the requested change to the other party in writing. Service Provider shall, within a reasonable time after such request, provide a written estimate to Client of:
    1. the likely time required to implement the change;
    2. any necessary variations to the fees and other charges for the Services arising from the change;
    3. the likely effect of the change on the Services; and
    4. any other impact the change might have on the performance of the Services.
  2. Promptly after receipt of the written estimate, the parties shall negotiate and agree in writing on the terms of such change (a “Change Order”). Neither party shall be bound by any Change Order unless mutually agreed upon in writing.
  3. Notwithstanding Section 7(a), Service Provider may, from time to time change the Services without the consent of Client provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates.
  4. Service Provider may charge for the time it spends assessing and documenting a change request from Client on a time and materials basis.
  5. If changes to the project occur through the fault of the Client which cause additional or repeated work to be performed by Service Provider, it will be considered  a Change Order subject to additional fees.

8. Fees and Expenses; Payment Terms; Interest on Late Payments

  1. In consideration of the provision of the Services by Service Provider and the rights granted to Client under the Terms, Client shall pay the fees as invoiced.
  2. Client agrees to reimburse Service Provider for all reasonable travel and out-of-pocket expenses incurred by Service Provider in connection with the performance of the Services.
  3. If Service Provider extends credit to Client, Client shall pay, in addition to all fees set forth on the invoice, a monthly service charge equal to 2% on all past due balances.
  4. Service Provider will invoice Client for the Services.  Client shall pay all invoiced amounts due to Service Provider upon completion of the Services.  Client shall make all payments hereunder in US dollars by ACH, wire transfer, credit card, or check or as otherwise agreed by Service Provider.  Service Provider shall not release any Deliverables (as defined in Section 9(a) below) until it receives payment of all invoiced amounts.  Additionally, in the event payments are not received by Service Provider within thirty (30) days after becoming due, Service Provider may charge interest on any such unpaid amounts at a rate of 1.5% per month or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid.  Client agrees to pay all reasonable collection costs incurred by Service Provider, including the fees of third parties engaged to collect outstanding monies owed, including collection agencies, attorney fees, whether or not litigation has commenced.
  5. If Service Provider does not release the Deliverables due to non-payment, Service Provider will not be responsible for any loss or damage arising from not releasing the Deliverables.

9. License and Ownership

  1. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product, and other materials that are delivered to Client  or prepared by or on behalf of Service Provider in the course of performing the Services, including any items identified as such (collectively, the “Deliverables”) except for any Confidential Information of Client or Client materials shall be owned by Service Provider. Upon Client’s full payment of invoices to Service Provider, Service Provider hereby grants Client a license to use all Intellectual Property Rights free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free, and perpetual basis to the extent necessary to enable Client to make reasonable use of the Deliverables and the Services.
  2. Client is not granted any right to copy or transfer ownership of the Deliverables to any other organization or to use it outside of the scope of organization to which it was provided by Service Provider without the written permission of Service Provider. Client will also take reasonable steps to ensure that employees and former employees do not use the Deliverables in an unauthorized manner.
  3. Client hereby acknowledges and agrees that Service Provider shall be entitled to an injunction against use of the Deliverables in obtaining any certification if Client has failed to pay Service Provider in full.  Client shall not promote, market, inform, announce or in any other way declare that a certification has been obtained in connection with the Deliverables until full payment has been made to Service Provider, unless expressly agreed in writing by the parties. Permission to promote actual or expected certification will not be unreasonably withheld by Service Provider in the event that Client makes payments as described herein.

10. Confidentiality

  1. From time to time during the provision of Services by Service Provider, either party (as the “Disclosing Party”) may disclose or make available to the other party (as the “Receiving Party”), non-public, proprietary, and confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as “confidential,” or if disclosed orally, is identified as confidential when disclosed and within three (3) days thereafter, is summarized in writing and confirmed as confidential (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (i) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section 10; (ii) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (iii) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (iv) was or is independently developed by Receiving Party without using any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations in connection with providing the Services; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Group (defined below) who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations in connection with providing the Services.
  2. If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy. For purposes of this Section 10 only, Receiving Party’s Group shall mean the Receiving Party’s employees, officers, directors, shareholders, members, managers, agents, independent contractors, sublicensees, subcontractors, attorneys, accountants, and financial advisors.
  3. The Disclosing Party shall be entitled to injunctive relief for any violation of this Section 10.

11. Representation and Warranty

  1. Service Provider represents and warrants to Client that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations in connection with providing the Services.
  2. The Service Provider shall not be liable for a breach of the warranty set forth in Section 11(a) unless Client gives written notice of the defective Services, reasonably described, to Service Provider within ten (10) days of the time when Client discovers or ought to have discovered that the Services were defective.
  3. Subject to Section 10(b), Service Provider shall, in its sole discretion, either:
    1. repair or re-perform such Services (or the defective part); or
    2. credit or refund the price of such Services at the pro rata contract rate.
  4. THE REMEDIES SET FORTH IN SECTION 11(c) SHALL BE THE CLIENT’S SOLE AND EXCLUSIVE REMEDY AND SERVICE PROVIDER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 11(a).
  5. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 11(a) ABOVE, SERVICE PROVIDER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.

12. Limitation of Liability

  1. IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, 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 DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
  2. IN NO EVENT SHALL SERVICE PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE SERVICES, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SERVICE PROVIDER GIVING RISE TO THE CLAIM.

13. Indemnification

  1. Client shall indemnify, defend and hold harmless Service Provider, its affiliates, and its and their respective members, managers, employees and agents (collectively, the “Service Provider Indemnitees”) against any third party claims, including reasonable attorneys’ fees for defending those claims, to the extent such claims arise out of or relate to (a) the unauthorized use of the Deliverables by Client or its affiliates (except to the extent such claims result from Service Provider’s breach of its representations, warranties, or obligations under these Terms or a Service Provider Indemnitee’s negligence or willful misconduct); (b) any negligence or willful misconduct of Client or its affiliates and their respective directors, officers, shareholders, members, managers, employees and agents; (c) any third party claims against Service Provider with respect to any ISO requirements or regulatory agency’s requirements (c) Client’s breach of these Terms; or (d) any third party claims against Service Provider with respect to the Services or Deliverables.
  2. Service Provider will indemnify, defend and hold harmless Client, its affiliates, and its and their respective officers, directors, employees and agents (collectively, the “Client Indemnitees”) against any third party claims, including reasonable attorneys’ fees for defending those claims, to the extent such claims arise out of or relate to (a) the performance of Services by any Service Provider Indemnitee (as defined in Section 13(a)) or any injury or harm to Service Provider representatives alleged to have occurred on Client’s or its affiliates’ premises during the course of performance of Services (except to the extent such claims result from Client’s breach of these Terms or a Client’s Indemnitee’s negligence or willful misconduct); (b) any Service Provider Indemnitee’s negligence or willful misconduct in performing obligations in connection with providing the Services or (c) Service Provider’s breach of its representations, warranties or obligations under these Terms.
  3. Each party must notify the other party within thirty (30) days after receipt of any third party claims made for which the other party might be liable under Section 13(a) or 13(b), as applicable. The indemnifying party will have the sole right to defend, negotiate, and settle such claims. The indemnified party will be entitled to participate in the defense of such matter and to employ counsel at its expense to assist in such defense; provided, however, that the indemnifying party will have final decision-making authority regarding all aspects of the defense of the claim. The indemnified party will provide the indemnifying party with such information and assistance as the indemnifying party may reasonably request, at the expense of the indemnifying party. Neither party will be responsible or bound by any settlement of any claim or suit made without its prior written consent; provided, however, that the indemnified party will not unreasonably withhold, condition, or delay such consent.

14. Term and Termination of Services

  1. These Terms shall commence as of the date the Client confirms the commencement date of the Services or the date on which the provision of Services begin, whichever comes first (the “Effective Date”) and shall continue thereafter until the completion of the Services unless sooner terminated pursuant to Sections 14(b) or 14(c).
  2. Either Party may terminate the provision of Services, effective upon written notice to the other Party (the “Defaulting Party”) if the Defaulting Party:
    1. Becomes insolvent or admits its inability to pay its debts generally as they become due;
    2. Becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within thirty (30) days or is not dismissed or vacated within forty-five (45) days after filing;
    3. Is dissolved or liquidated, or takes any corporate action for such purpose;
    4. Makes a general assignment for the benefit of creditors; or
    5. Has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
  3. The provision of Services may be terminated for any reason whatsoever at any time by either Party up until the day before the date the Services are to be provided. In lieu of termination, Client may postpone the provision of Services to any mutually convenient time.
  4. Upon termination of the provision of Services:
    1. Client will pay Service Provider any monies due and owing Service Provider, up to the time of termination for Services performed and all authorized expenses actually incurred within thirty (30) days from the effective date of termination of the provision of Services;
    2. Service Provider will promptly refund any monies paid in advance by Client for Services not rendered; and
    3. each Receiving Party will, at Disclosing Party’s written request and cost, promptly destroy or return to the Disclosing Party all of Disclosing Party’s Confidential Information (including all copies) provided to Receiving Party during the provision of Services, except for one (1) copy which receiving Party may retain solely to monitor Receiving Party’s surviving obligations of confidentiality and non-use, and to exercise all surviving rights of the parties under these Terms.
  5. In the event the provision of Services is terminated for any reason other than for default by Service Provider, Service Provider will charge, and Client agrees to pay, a cancellation fee equal to 25% of the full price for the Services as agreed to by Service Provider and Client before Services are provided as compensation for lost revenue.

15. Non-Solicitation of Service Provider’s Employees or Independent Contractors

  1. During the time in which Service Provider is providing Services to Client and for a period of six (6) months after the termination or completion of the Services, Client shall not solicit, hire, or engage any employee or independent contractor of Service Provider, without the written permission of Service Provider, as a full-time or part-time employee or independent contractor to perform services on Client’s or another third party’s behalf the same as or similar to the Services provided by Service Provider to Client. In the event that Client breaches this Section 15, Client shall pay Service Provider a fee equal to 50% of the individual’s annual salary as calculated at the time of termination of employment with Service Provider (“Liquidated Damages”). The parties intend that the Liquidated Damages constitute compensation, and not a penalty. The parties acknowledge and agree that the Service Provider’s harm caused by Client’s breach of this Section 15 would be impossible or very difficult to accurately estimate, and that the Liquidated Damages are a reasonable estimate of the anticipated or actual harm that might arise from Client’s breach of this Section 15.

16. Dispute Resolution

Any dispute, controversy or claims arising out of or relating to these Terms or the provision of Services, including issues relating to ownership or right of intellectual property or to proprietary information, shall be commenced in the federal or state courts of law having jurisdiction in Denver, Colorado. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation or proceeding only in the state courts with jurisdiction in Denver, Colorado. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

17. Disputes with Third Parties

Client agrees that neither Client nor those representing Client will require Service Provider, its affiliates, and its and their respective officers, directors, employees and agents to appear and testify in court proceedings connected with disputes between Client and third parties. In the event Client requires Service Provider, its affiliates, and its and their respective officers, directors, employees and agents to appear and testify in court proceedings connected with disputes between Client and third parties, then Client agrees to reimburse the witness for expenses reasonably incurred by the witness in attending or testifying in the court proceedings and to provide reasonable compensation to the witness for his or her loss of time in attending or testifying.

18. Entire Agreement

These Terms contain the entire agreement of the parties, and there are no other promises or conditions in any other agreement whether oral or written.

19. Amendment

These Terms may be modified or amended by Service Provider if the amendment is made in writing and written notice is provided to Client.

20. Waiver

No waiver by either party of any of the provisions of these Terms is effective unless explicitly set forth in writing and signed by both parties. Failure by either party to enforce, delay in enforcing or exercising, a clause, any rights, remedy, power or privilege or any part thereof shall not be interpreted as a waiver of the right of that party to subsequently enforce it. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

21. Force Majeure

No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any term of these Terms (except for any obligations of Client has to make payments to Service Provider hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, epidemics, pandemics or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, mandates, law, or action; (e) embargoes or blockades in effect on or after the Effective Date; (f) national or regional emergency; and (g) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within three (3) days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of one hundred eighty (180) consecutive days following written notice given by it under this Section 21, the other party may thereafter terminate the provision of Services upon thirty (30) days’ written notice.

22. Assignment

Client shall not assign any of its rights or delegate any of its obligations under these Terms without the prior written consent of Service Provider. Any purported assignment or delegation in violation of this Section 22 is null and void. No assignment or delegation relieves Client of any of its obligations under these Terms.

23. Relationship of the Parties

The relationship between the parties is that of independent contractors. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, 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.

24. Publicity

Except to the extent required by applicable law or regulation, neither Service Provider nor Customer will make any public statement or release concerning these Terms or the transactions contemplated by the Parties, without obtaining the prior written consent of the other Party.  Notwithstanding the foregoing, Client grants Service Provider a limited, non-exclusive license to use one or more of Client’s trademarks, service marks, logos and designs (collectively, “Client’s Marks”) solely for identifying Customer as a current or former customer of Service Provider in its advertising or promotion of its services.  Service Provider shall only use the Client’s Marks in the exact form, size, style and type prescribed by Client without deviation.  Service Provider acknowledges and agrees that Client’s Marks shall remain the exclusive property of Client or its affiliates.  Client may revoke the limited, non-exclusive license granted to Service Provider to use Client’s Marks for identifying Customer as a current or former customer of Service Provider in its advertising or promotion of its services by providing written notice to Service Provider pursuant to Section 28 of these Terms.

25. Validity of Provisions

If any provisions or terms of these Terms are determined to be wholly or partially invalid or unenforceable, such invalidity, illegality or unenforceability shall not affect any other provision or term of these Terms.

26. Survival

Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of these Terms including, but not limited to, the following provisions: Confidentiality, Governing Law, Dispute Resolution, and Survival.

27. Applicable Law

These Terms shall be governed by the laws of the State of Colorado without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than those of the State of Colorado.

28. Notices

All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the address designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in these Terms, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section 28.

Updated on February 20, 2023

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