These Service Terms and Conditions (“Terms”) govern the legal agreement between Exactera, LLC (“Exactera”) and the customer identified in the Order Form and/or Proposal that accompanies or references these Terms (“Customer”). Together, these Terms and any executed Order Form and/or Proposal (collectively, the “Order”) constitute the agreement between the parties (the “Agreement”). These Terms supersede and replace any prior terms and conditions agreements between Exactera and Customer.
1. DEFINITIONS
“Affiliate” means, with respect to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with such party, where “control” means ownership of more than fifty percent (50%) of the voting interests of the entity.
“Order” means the Order Form and/or Proposal executed by the parties that incorporates or references these Terms, including any exhibits or schedules attached to it.
“Services” means the consulting, advisory, documentation, study, benchmarking, analysis, tax recovery, and other professional services to be performed by Exactera as described in the Order.
“Work Product” means the deliverables, reports, analyses, refund claims, and other materials prepared by Exactera for Customer in connection with the Services.
2. SERVICES
2.1 Scope. Exactera will perform the Services described in the Order. Any services not expressly described in the Order are out of scope. Additional services may be added only by written amendment or by a new Order signed by both parties. Each additional Order shall be subject to the terms of this Agreement.
2.2 Performance. Exactera will perform the Services in a professional and workmanlike manner, using personnel with the skills and qualifications appropriate for the Services and consistent with prevailing industry standards.
2.3 No Legal Advice. Exactera does not provide legal advice, legal opinions, or legal representation. The Services are limited to consulting, advisory, and tax recovery services. Customer is encouraged to engage independent legal counsel for any matters requiring legal advice.
2.4 Tax Advice. Exactera will use professional judgment to resolve issues where the tax law is unclear or where there may be conflicts between taxing authority interpretations and other supportable positions. Unless otherwise instructed by Customer, Exactera will resolve such questions in Customer’s favor consistent with the law and Exactera’s professional obligations. Exactera cannot guarantee that any tax position will not be challenged or, if challenged, that the position will be sustained. Tax advice is based on the law in effect as of the date the Services are rendered; subsequent changes may render advice invalid or require reconsideration.
2.5 Ownership of Work Product. Subject to Customer’s payment of all fees due under the Order, Exactera assigns to Customer all right, title, and interest in the Work Product delivered to Customer under the Agreement, and the Work Product shall be considered “work made for hire” to the extent permitted by Applicable Law. Notwithstanding the foregoing, Exactera retains all right, title, and interest in its pre-existing materials, methodologies, templates, know-how, tools, and techniques used in performing the Services, including any improvements or modifications made during the engagement, and Customer’s ownership of Work Product does not extend to such Exactera materials. To the extent any Exactera pre-existing materials are incorporated into Work Product, Exactera grants Customer a perpetual, royalty-free, non-exclusive license to use such materials solely as part of and for the intended purpose of the Work Product.
2.6 Services to Affiliates. The Services may be provided to Customer’s Affiliates as identified in the Order. Customer is responsible for its Affiliates’ compliance with the Agreement, for their acts and omissions as if Customer’s own, and for payment of all fees relating to Services provided to any Affiliate.
3. CUSTOMER RESPONSIBILITIES
3.1 Information and Authority. Customer will provide Exactera with information and documentation that is true, accurate, and complete and that is reasonably necessary for Exactera to perform the Services. Exactera may rely on the information provided by Customer without independent verification, and Customer remains responsible for the accuracy and completeness of all such information. Customer represents that it has full authority to enter into the Agreement and that its execution and performance of the Agreement does not conflict with any other obligation by which it is bound.
3.3 Cooperation. Customer will provide timely responses to Exactera’s information requests and timely review and approval of draft filings, deliverables, and correspondence prior to submission to any third party. Exactera’s ability to perform the Services and meet any estimated timelines depends on Customer’s timely cooperation, and Exactera shall not be responsible or liable for any delay, deficiency, or inability to complete the Services, or for any adverse outcome resulting therefrom, to the extent caused by Customer’s failure to provide accurate, or timely information, responses, or approvals.
4. FEES AND PAYMENT
4.1 Fees. Customer will pay Exactera the fees set forth in the Order. Fees are exclusive of any sales, use, value-added, or other applicable taxes (other than taxes on Exactera’s net income), which are Customer’s responsibility.
4.2 Contingency and Success-Based Fees. Where an Order provides for contingency-based or success-based fees, the fee shall become due upon Customer’s receipt or realization of the Recovery (as defined in the applicable Order), in accordance with the fee terms specified in the Order. Exactera’s right to receive such fees shall survive expiration or termination of this Agreement or the applicable Order and shall apply to any Recovery received by Customer within twenty-four (24) months following expiration or termination (the “Tail Period”) that is attributable in whole or in part to Services performed by Exactera. Customer shall promptly notify Exactera of any Recovery received during the Tail Period.
4.3 Payment Terms. Unless the Order specifies otherwise, invoices are payable net thirty (30) days from the invoice date. Amounts not paid when due accrue interest at the lesser of one percent (1%) per month or the maximum rate permitted by law. Customer will notify Exactera in writing within fifteen (15) days of an invoice date of any amounts disputed in good faith, together with reasonable detail supporting the dispute. Undisputed amounts remain payable in accordance with this Section 4.3. If undisputed amounts remain unpaid more than thirty (30) days past the due date, Exactera may, upon ten (10) days’ written notice, suspend performance of the Services until all undisputed past-due amounts are paid. Suspension under this Section shall not be a breach of the Agreement by Exactera, and any deadlines or estimated timelines shall be extended accordingly.
5. TERM AND TERMINATION
5.1 Term. The Agreement commences on the effective date of the Order and remains in effect for so long as any Order remains in effect, unless earlier terminated in accordance with Section 5.3.
5.2 Term of Each Order. Each Order commences on the effective date of the Order and will continue until the earlier of (a) completion of the Services described in the Order or (b) one (1) year from the Order’s effective date, unless terminated earlier in accordance with this Agreement or extended by mutual written agreement of the Parties.
5.3 Termination for Cause. Either party may terminate this Agreement or any individual Order upon written notice if the other party (a) commits a material breach of the Agreement and fails to cure such breach within thirty (30) days after receiving written notice describing the breach in reasonable detail, or (b) becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors. Termination of an individual Order will not terminate this Agreement or any other Order then in effect.
5.4 Effect of Termination. Upon termination or expiration of the Agreement: (a) all fees paid or payable for Services performed through the effective date of termination are non-refundable, and any unpaid fees accrued through such date shall become immediately due and payable, except that if Customer terminates pursuant to Section 5.3, Exactera shall refund a pro-rata portion of any pre-paid fees attributable to Services not yet performed; (b) Exactera’s right to receive contingency-based or success-based fees shall survive in accordance with Section 4.2; (c) Exactera will promptly return or make available to Customer all original documents and records provided by Customer, and may retain copies of its work papers in accordance with its record retention policies; and (d) each party will return or destroy the other party’s Confidential Information in accordance with Section 6.
6. CONFIDENTIALITY
6.1 Definition. “Confidential Information” means non-public information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) that is identified as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes financial data, tax records, employee information, Work Product, methodologies, fee arrangements, and the terms of the Agreement. Confidential Information does not include information that (a) is or becomes publicly known without breach of the Agreement; (b) was rightfully known to the Receiving Party before disclosure without an obligation of confidentiality; (c) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or (d) is rightfully obtained from a third party without an obligation of confidentiality.
6.2 Obligations. The Receiving Party will (a) use the Disclosing Party’s Confidential Information only to perform its obligations or exercise its rights under the Agreement; (b) use at least the same degree of care it uses to protect its own confidential information of like kind, but in no event less than reasonable care; and (c) limit access to its employees, contractors, and advisors who have a need to know and are bound by confidentiality obligations no less protective than those in this Section.
6.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information to the extent required by law, regulation, or legal process, provided that, to the extent legally permitted, the Receiving Party gives the Disclosing Party prompt written notice and reasonable cooperation in seeking a protective order or other appropriate remedy.
6.4 Return or Destruction. Upon termination of the Agreement or the Disclosing Party’s written request, the Receiving Party will return or destroy the Disclosing Party’s Confidential Information, except for copies retained for legal or regulatory compliance or in routine archival or backup systems, which copies remain subject to the confidentiality obligations of this Section.
6.5 Publicity. Neither Party may use the name, logo, or trademarks of the other Party in any published advertising or publicity materials without the prior written consent of the other Party. Notwithstanding the foregoing, Exactera may include Customer’s name and logo on Exactera’s customer list and may describe briefly, and in general terms, the nature of the Services provided by Exactera to Customer.
6.6 Duration. The confidentiality obligations of this Section survive for three (3) years after termination of the Agreement, except that obligations with respect to information that constitutes a trade secret continue for as long as the information remains a trade secret under applicable law.
6.7 Equitable Relief. Each party acknowledges that a breach of Section 2.5 (Ownership of Work Product) or Section 6 (Confidentiality) may cause irreparable harm for which monetary damages would be inadequate. The non-breaching party may seek equitable relief, including injunctive relief, without posting a bond, in addition to any other available remedies.
7. REPRESENTATIONS AND WARRANTIES
7.1 Mutual. Each party represents and warrants that (a) it has full authority to enter into and perform its obligations under the Agreement; (b) its execution and performance of the Agreement do not and will not conflict with any other agreement or obligation by which it is bound; and (c) the Agreement, when executed, constitutes a valid and binding obligation enforceable against such party in accordance with its terms.
7.2 By Exactera. Exactera represents and warrants that (a) the Services will be performed in a professional and workmanlike manner consistent with prevailing industry standards; (b) Exactera will comply with all applicable international, federal, state, and local laws in performing the Services; (c) the personnel assigned to perform the Services possess the skills, qualifications, and experience appropriate for the Services; and (d) the Services and Work Product, as delivered by Exactera, will not infringe or misappropriate the intellectual property rights of any third party. Exactera’s sole obligation and Customer’s sole remedy for a breach of subsection (a) shall be for Exactera to correct or re-perform the affected Services without undue delay, at no additional charge to Customer.
7.3 By Customer. Customer represents and warrants that the information and documentation it provides to Exactera in connection with the Services will be true, accurate, and complete to the best of Customer’s knowledge.
7.4 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THE AGREEMENT, EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. EXACTERA DOES NOT GUARANTEE ANY PARTICULAR OUTCOME FROM THE SERVICES AND CANNOT ASSURE THAT ANY TAX POSITION WILL NOT BE CHALLENGED OR, IF CHALLENGED, WILL BE SUSTAINED.
8. INDEMNIFICATION
8.1 By Exactera. Exactera will defend, indemnify, and hold harmless Customer, its Affiliates, and their respective officers, directors, employees, and agents from and against any third-party claim, and any resulting losses, damages, liabilities, and reasonable costs and attorneys’ fees, arising from (a) Exactera’s breach of any representation or warranty under the Agreement; (b) Exactera’s gross negligence, willful misconduct, or fraud in performing the Services; (c) any claim that the Services or Work Product infringe or misappropriate the intellectual property rights of a third party; or (d) Exactera’s breach of its confidentiality or data protection obligations under the Agreement.
8.2 By Customer. Customer agrees to indemnify, defend, and hold harmless Exactera and its officers, employees, and agents from and against any third-party claims, losses, damages, liabilities, and reasonable attorneys’ fees arising out of or relating to (a) any material inaccuracy, incompleteness, or misrepresentation in information provided by Customer to Exactera; or (b) Customer’s tax positions or filings, except to the extent caused by Exactera’s gross negligence or willful misconduct.
8.3 Procedures. The indemnified party will (a) promptly notify the indemnifying party in writing of the claim; (b) give the indemnifying party sole control of the defense and settlement of the claim, provided that the indemnifying party will not settle any claim that imposes a non-monetary obligation on, or admits liability of, the indemnified party without the indemnified party’s prior written consent (not to be unreasonably withheld); and (c) provide reasonable cooperation in the defense at the indemnifying party’s expense.
9. LIMITATION OF LIABILITY
9.1 Cap on Liability. EXCEPT AS PROVIDED IN SECTION 9.3, EACH PARTY’S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THE AGREEMENT WILL NOT EXCEED THE TOTAL FEES PAID BY CUSTOMER TO EXACTERA UNDER THE AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
9.2 Exclusion of Indirect Damages. EXCEPT AS PROVIDED IN SECTION 9.3, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, DATA, OR BUSINESS OPPORTUNITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.3 Exceptions. The limitations in Sections 9.1 and 9.2 do not apply to (a) a party’s indemnification obligation for third-party intellectual property infringement claims under Section 8; (b) a party’s breach of its confidentiality obligations under Section 6; (c) Customer’s obligation to pay fees under Section 4; or (d) liability arising from a party’s gross negligence, willful misconduct, or fraud.
10. INFORMATION SECURITY AND DATA PROTECTION
10.1 Security Program. Exactera will maintain a written information security program with administrative, technical, and physical safeguards designed to protect the confidentiality, integrity, and availability of Customer data, consistent with industry-standard frameworks such as ISO/IEC 27001, SOC 2, or the NIST Cybersecurity Framework.
10.2 Data Protection. Exactera will handle personal data received in connection with the Services in accordance with applicable data protection and privacy laws, including, where applicable, U.S. federal and state privacy laws and the EU and UK General Data Protection Regulation. Where required by Applicable Law, the Parties will enter into a data processing addendum or other appropriate arrangement to govern the processing of personal data.
10.3 Incident Notification. Exactera will promptly notify Customer of any actual or reasonably suspected data breach affecting Customer’s data and will reasonably cooperate with Customer in investigating and mitigating the incident.
10.4 Service Improvement. Exactera may use data and information generated through its performance of the Services in aggregated and de-identified form (meaning the data does not identify Customer, its personnel, or any individual, and cannot reasonably be used to do so) to improve, develop, and enhance Exactera’s services, methodologies, and internal benchmarks. Exactera will not disclose Customer’s Confidential Information in identifiable form to any third party.
11. GENERAL PROVISIONS
11.1 Independent Contractor. Exactera is an independent contractor. Nothing in the Agreement creates a partnership, joint venture, employment, agency, or fiduciary relationship between the parties.
11.2 Insurance. Exactera will maintain insurance coverage in types and amounts customary for providers of similar services and will furnish certificates of insurance to Customer upon written request.
11.3 Record Retention. Exactera’s work papers are Exactera’s property and will be retained for seven (7) years following completion of the Services. Customer is responsible for retaining its own copies of all deliverables, reports, filings, returns, claims, correspondence, and supporting documentation provided by or prepared by Exactera in connection with the Services.
11.4 Governing Law. The Agreement is governed by the laws of the State of New York, without regard to its conflicts-of-laws principles.
11.5 Dispute Resolution. The parties will first attempt to resolve any dispute arising out of or relating to the Agreement through good-faith negotiation between senior representatives. If a dispute is not resolved within thirty (30) days, either party may submit the dispute to non-binding mediation administered by the American Arbitration Association or JAMS in New York, New York. If the dispute is not resolved through mediation within sixty (60) days, either party may pursue resolution in the state or federal courts located in New York County, New York, and each party consents to the personal jurisdiction and venue of such courts.
11.6 Assignment. Neither party may assign the Agreement without the prior written consent, which shall not be unreasonably withheld, of the other party, except that either party may assign the Agreement, without consent, to an affiliate or to a successor in connection with a merger, reorganization, or sale of all or substantially all of its assets, provided that the assignee assumes all obligations under the Agreement in writing.
11.7 Force Majeure. Neither party is liable for any delay or failure in performance (other than the obligation to pay amounts due) caused by events beyond its reasonable control.
11.8 Notices. Notices to Exactera must be sent to: Exactera, LLC, Attn: Legal Department, 520 White Plains Road, 2nd Floor, Tarrytown, NY 10591, or by email with confirmation of receipt to legalforsales@exactera.com.
11.9 Entire Agreement. The Agreement (these Terms together with the Order) constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior agreements, proposals, and representations relating to the Services. In the event of any conflict between these Terms and an Order, these Terms control unless the Order expressly states that a specific provision of the Order supersedes a specific provision of these Terms.
11.10 Amendments. The Agreement may be amended only by a written instrument signed by an authorized representative of each party.
11.11 Severability. If any provision of the Agreement is held invalid or unenforceable, the remaining provisions remain in full force and effect, and the invalid or unenforceable provision will be deemed modified to the minimum extent necessary to be enforceable.
11.12 Waiver. A party’s failure to enforce any provision of the Agreement is not a waiver of that or any other provision.
11.13 Counterparts. The Agreement may be executed in counterparts, including by electronic signature, each of which is deemed an original and all of which together constitute one and the same instrument.
11.14 Survival. The following provisions survive expiration or termination of the Agreement: Section 2.5 (Ownership of Work Product), Section 4 (Fees and Payment, including the contingency-fee tail in Section 4.2), Section 5.4 (Effect of Termination), Section 6 (Confidentiality), Section 8 (Indemnification), Section 9 (Limitation of Liability), Section 10.4 (Service Improvement), Section 11.4 (Governing Law), Section 11.5 (Dispute Resolution), and this Section 11.14, together with any other provision that by its nature is intended to survive.
[End of Service Terms and Conditions]
V.-04.27.2026