(a) The Term and Conditions and any appendices other than these Business Terms (“Terms and Conditions”) issued by ZAKA One and addressed to the entity specified in the request or Engagement Letter (“Client”), and these Business Terms (collectively the “Contract”) constitute the whole agreement between the Client and ZAKA One in relation to the services, deliverables and work product described in the Engagement Letter (the “Services”). For the purposes of this Contract, the “Client” shall include such Client’s subsidiaries and/or affiliates as identified in the Engagement Letter (together with Client, “Client Group”), provided that whenever necessary under the law, each subsidiary and/or affiliates must accede to this agreement or execute a separate agreement which incorporates all the terms of this agreement. Client represents and warrants that it has the power and authority to execute this agreement on behalf of, and to bind, itself and its subsidiaries and/or affiliates identified in the Engagement Letter.

(b) This Contract is between the Client and ZAKA One. ZAKA One may subcontract any Services under this Contract to any ZAKA member firm and its respective subsidiaries and affiliates or, without the consent of the Client, to any other party (collectively “Subcontractor”). Client’s relationship is solely with ZAKA One as the entity contracting to provide the Services. Each party is an independent contractor and neither party is, nor shall be considered to be, the other’s agent, distributor, partner, fiduciary, joint venture, co-owner, or representative. ZAKA One remains responsible to the Client for all of the Services under this Contract, including Services performed by its Subcontractors. Accordingly, to the fullest extent possible under applicable law, none of the ZAKA One Entities (except ZAKA One) will have any liability to the Client and the Client will not bring, and will ensure that no other member of the Client Group brings, any claim or proceedings of any nature (whether in contract, tort, breach of statutory duty or otherwise, and including, but not limited to, a claim for negligence) in any way in respect of or in connection with this Contract against any of the ZAKA One Entities (except ZAKA One). 

(a) Responsibilities of the Client

(i) The Client shall cooperate with ZAKA One in the performance by ZAKA One of the Services, including, without limitation, providing ZAKA One 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, for the timeliness, accuracy and completeness of all data and information (including all financial information and statements) provided to ZAKA One by or on behalf of the Client and for the implementation of any advice provided as part of the Services. ZAKA One may use and rely on information and data furnished by the Client or others without verification. ZAKA One’s performance shall be dependent upon the timely performance of the Client’s responsibilities hereunder and timely decisions and approvals of the Client in connection with the Services. ZAKA One shall be entitled to rely on all decisions and approvals of the Client.

(ii) Except as otherwise provided in the Engagement Letter, the Client shall be solely responsible for, among other things: (A) making all management decisions and performing all management functions; (B) designating one or more individuals who possess suitable skill, knowledge, and/or experience, preferably within senior management to oversee the Services; (C) evaluating the adequacy and results of the Services; (D) accepting responsibility for the results of the Services; and (E) establishing and maintaining internal controls, including, without limitation, monitoring ongoing activities.

(iii) In connection with the performance of obligations under the Contract, ZAKA One shall act in strict compliance with applicable laws, proceeding from the understanding that the Client and/or any third parties, acting in accordance with applicable laws and on a fair, equitable and reasonable basis, shall assume full responsibility for any use whatsoever of the Deliverables and the ZAKA One's recommendations contained therein. ZAKA One develops the Deliverables on the basis of the assumption that the Client has requested advisory services and shall use the Deliverables and the recommendations therein in any manner whatsoever for purposes other than the violation of applicable laws by the Client and/or any third parties, or the concealment of such violations from competent state authorities, or any abuse of their rights, or any material or non-material (personal) damage to third parties, including the government or the public interests.

(b) Responsibilities of ZAKA One

(i) The Deliverables and recommendations therein are the personal opinion of ZAKA One on the applicable law and the existing legal practice, as well as on the legal and/or tax consequences based on the facts and assumptions known to ZAKA One at the time of the preparation of Deliverables; such facts and assumptions could be contained in the “Facts and Assumptions” section of the Engagement Letter with respect to issues, goals and objectives set by the Client. The Services provided are not binding on tax authorities or the courts and do not constitute a representation, warranty, or guarantee that the tax authorities or the courts will concur with ZAKA One’s advice or opinion. Any Services provided by ZAKA One will be based upon the law, regulations, cases, rulings, and other tax authority in effect at the time specific Services are provided. Subsequent changes in or to the foregoing (for which ZAKA One shall have no responsibility to advise Client) may result in the Services provided by ZAKA One being rendered invalid. 

(ii) Except as specifically agreed to in writing, ZAKA One shall not provide advice regarding the financial accounting treatment of any transaction implemented from the Services and will not assume any responsibility for any financial reporting with respect to the Services. ZAKA One shall have no responsibility to address any legal matters or questions of law, unless ZAKA One is also engaged to provide legal services as part of the same engagement and as outlined in the engagement letter in relation to the Services.

(iii) In formulating any advice as part of the Services, ZAKA One may discuss ideas with the Client orally or show the Client drafts of such advice. To the extent that the content of such drafts or oral advice are expected to be finalized and confirmed to the Client in writing, such writing shall supersede any previous drafts or oral advice and, accordingly, ZAKA One shall not be responsible if the Client or others choose to rely on, act or refrain from acting on the basis of such drafts or oral advice.

(iv) ZAKA One’s responsibility is hereby expressly limited to the provision of the Services in the form of Deliverables specified in the Engagement Letter. ZAKA One shall not bear any express or implied responsibility for achievement of any particular result or any consequences resulting from the use by the Client and/or third parties of the Deliverables and the comments contained therein in any manner whatsoever, including: for the consequences of any decisions by the Client and/or third parties to apply, or not, any comments from the Deliverables in their business; or for any direct or indirect moral and/or material and/or other damage to third parties and public relations including, but not limited to, any relations regulated by tax legislation. The decision to implement or to restrain from implementing ZAKA One’s advice or recommendations contained in the Deliverables, as well as the implementation thereof, remain the sole responsibility of the Client, its subsidiaries and affiliates and the respective owners, officers, and employees if applicable.

(a) Cost of the Services. Cost of the Services will consist of ZAKA One’s Professional Fees, reimbursement of actual expenses (“Out-of-pocket (Chargeable) expenses”) and overhead expenses (“Overheads”).

ZAKA One’s Professional Fees for the Services rendered shall be based on the level of technical knowledge and experience of the personnel involved in the provision of the Services, on the complexity of the issues considered and on the time spent on the provision of the Services. ZAKA One’s Professional Fees for the Services shall be established in the Engagement Letter. ZAKA One’s Professional fees could be based, inter alia, on ZAKA One’s hourly rates, which may be subject to annual review by ZAKA One. 

For the purposes of the Engagement Letter the Overheads shall amount to 6% (six per cent) of ZAKA One’s Professional Fees and shall include, without limitation, secretarial expenses, accounting expenses, record-keeping expenses (including copying, storage, and confidential destruction expenses) as well as other expenses related to ZAKA One’s performance under Engagement Letter. ZAKA One shall not be obliged to provide documents confirming its Overheads to the Client.

(b) Taxes. If the Services are subject to VAT in accordance with the Dutch legislation, ZAKA One will add the Dutch VAT (21%) to ZAKA One’s Professional Fees, Out-of-pocket (Chargeable) expenses and Overheads. The invoiced amounts shall be paid by the Client free of commission, tax and other deductions. If under the law of a foreign state (other than the Netherlands), the Client is required to withhold, or ZAKA One, after being duly notified by the Client, is required to pay, any taxes or levies assessed in such foreign state on ZAKA One as recipient, including, but not limited to the VAT and withholding of the profits (income) tax at source, and also any similar taxes that can replace or append the existing ones, then the amount of compensation payable by the Client will be increased in such a manner that the net amount received by ZAKA One after withholding or payment is equal to the amounts of fees invoiced by ZAKA One. In the event that tax legislation is amended, rates and types of tax shall apply in accordance with those amendments.

(c) Payment of invoices. The schedule and payment procedure shall be agreed by the Parties in the Engagement Letter. Payments under the Engagement Letter shall be made based on invoices of ZAKA One, which shall separately state the amount of taxes envisaged by the Dutch legislation. ZAKA One’s invoices are due and payable by the Client upon presentation. Payment shall be made in accordance with the banking details indicated on the relevant invoice. The date of payment shall be understood to be the date that funds are deducted from the correspondent account of the Client’s bank. All transfer fees shall be payable by the Client. For invoices upon which payment is not received within thirty (30) days of the invoice date, ZAKA One reserves the right to charge interest calculated on the basis of the interest rate of the Central Bank of the Netherlands for each day of delay in payment. Without limiting its other rights or remedies, ZAKA One shall have the right to suspend or terminate the Services entirely or in part if payment is not received within thirty (30) days of the invoice date. Non-issuance of an invoice by ZAKA One within the specified term shall not discharge the Client from its obligation to pay the invoice within 30 (thirty) days of the invoice date.

Depending on the scope and nature of the services rendered, ZAKA One may require pre-payment for the services in the amount up to 50% of the estimated fees.  

In the event that ZAKA One incurs any collection costs with regard to overdue fees these costs shall be charged to the Client in an additional invoice without markup.

(d) Services acceptance report. Upon completion of rendering Services under the Engagement Letter or each stage thereof (if applicable under the Engagement Letter), the Parties shall sign a Services Acceptance Report (hereinafter, the “Report”). In the event that the Client refuses to sign the Report, it shall be obliged to present a written justified refusal to ZAKA One within 5 (five) banking days of receipt of the Report by the Client. In the event that this refusal is not presented within the stated term or the Report signed by the Client is not received by ZAKA One within one month after the Report was sent to the Client, the Services shall be deemed to be provided by ZAKA One and accepted by the Client in full and without any reservation or claim as to their quality. In the event that a Party refuses to sign the Report and the written justified refusal is not presented within the specified term, it shall be signed by the other Party and the refusal to sign shall be stated in the Report.

This Contract may be terminated by either party at any time, with or without cause, by giving written notice to the other party not less than 7 days before the effective date of termination, provided that, in the event of a termination for cause, the breaching party shall have the right to cure the breach within the notice period if the breach is capable of remedy. ZAKA One may terminate this Contract with immediate effect upon written notice to the Client if ZAKA One determines that (a) a governmental, regulatory, or professional entity, or an entity having the force of law has introduced a new, or modified an existing, law, rule, regulation, interpretation, or decision, the result of which would render ZAKA One’s performance of any part of the Contract illegal or otherwise unlawful or in conflict with independence or professional rules, or (b) circumstances change (including, without limitation, changes in ownership of the Client or any of its affiliates) such that ZAKA One’s performance of any part of the Contract would be illegal or otherwise unlawful or in conflict with independence or professional rules. Upon termination of the Contract, the Client will compensate ZAKA One under the terms of the Engagement Letter for the Services performed and expenses incurred through the effective date of termination.

To the extent that ZAKA One utilizes or develops any of its property (whether tangible or intangible) in connection with this Contract, such property, including work papers, shall remain the property of ZAKA One. On payment of all of ZAKA One’s fees in connection with this Contract, the Client shall only obtain a non-exclusive license to use within the Client Group, subject to the other provisions of this Contract, any Deliverables or work product (as defined or described in the Engagement Letter) for the purpose for which the Deliverables or work product were supplied. ZAKA One shall have ownership (including, without limitation, copyright and other intellectual property ownership) and all rights to use and disclose its ideas, concepts, know-how, methods, techniques, processes and skills, and adaptations thereof in conducting its business, and the Client shall not assert or cause to be asserted against any ZAKA One Entity or its personnel any prohibition or restraint from so doing. Any intellectual property and proprietary rights in the material provided by Client Group for performing the Services shall remain the property of the Client Group.

Notwithstanding anything to the contrary in sections 5 or 9, the Client acknowledges that ZAKA One, in connection with performing the Services, may develop or acquire general experience, skills, knowledge, and ideas that are retained in the memory of its personnel. The Client acknowledges and agrees that ZAKA One may use and disclose such experiences, skills, knowledge and ideas.

ZAKA One, any other ZAKA One Entity and their respective personnel, if and only to the extent it is determined such other ZAKA One Entity and its respective personnel have a liability, shall not be liable to the Client Group for any claims, liabilities, losses, damages, costs or expenses relating to this Contract or the Services (“Claims”) for an aggregate amount in excess of the fees paid by the Client to ZAKA One, except to the extent finally judicially determined to have resulted primarily from the intentional misconduct of ZAKA One, or any other ZAKA One Entity or their respective personnel. In no event shall any ZAKA One Entity (including ZAKA One) or their respective personnel be liable for any loss of use, contracts, data, goodwill, revenues or profits (whether or not deemed to constitute direct Claims) or any consequential, special, indirect, incidental, punitive or exemplary loss, damage, or expense relating to this Contract or the Services. In circumstances where all or any portion of the provisions of this paragraph 6 are finally judicially determined to be unavailable, the aggregate liability of ZAKA One, any other ZAKA One Entity and their respective personnel for any Claim shall not exceed an amount which is proportional to the relative fault that their conduct bears to all other conduct giving rise to such Claim.  

If the liability exclusion for ZAKA One Entities and Subcontractors provided in paragraph 1(b) is for any reason not effective, then the limitations on liability provided for in this paragraph 6 shall apply to ZAKA One Entities and Subcontractors as if they were named therein.

 Neither party shall be liable for any delays or nonperformance resulting from circumstances or causes beyond its reasonable control, including, without limitation, acts or omissions or the failure to cooperate by the other party (including, without limitation, entities or individuals under its control, or any of their respective officers, directors, employees, other personnel and agents), fire or other casualty, act of God, epidemic, strike or labor dispute, war or other violence, or any law, order, or requirement of any governmental agency or authority.

 No action, regardless of form, relating to this Contract or the Services, may be brought by either party more than three years after the cause of action has accrued under applicable law.

(a) To the extent that, in connection with this Contract, ZAKA One comes into possession of any tax return information, trade secrets or other proprietary information relating to the Client Group which is either designated by the disclosing party as confidential or is by its nature clearly confidential (the “Confidential Information”), ZAKA One shall not disclose such Confidential Information to any third party without Client’s consent. The Client hereby consents to ZAKA One disclosing such Confidential Information (i) to any ZAKA One Entity (including its partners, principals, and employees) and to any Subcontractors (ii) to legal advisors, auditors, insurers or as may be required by law, regulation, judicial or administrative process, or in accordance with applicable professional standards, or in connection with potential litigation; or (iii) to the extent such Confidential Information (A) 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 ZAKA One in breach hereof, (B) becomes available to ZAKA One on a non-confidential basis from a source other than the Client which ZAKA One believes is not prohibited from disclosing such information to ZAKA One by obligation to the Client, (C) is known by ZAKA One prior to its receipt from the Client without any obligation of confidentiality with respect thereto, or (D) is developed by ZAKA One independently of any disclosures made by the Client to ZAKA One of such information. 

(b) Client shall not disclose to any third party the advice, opinions, reports or other work product of ZAKA One provided hereunder without the express written consent of ZAKA One, except (i) where applicable laws, regulations, rules and professional obligations prohibit limitations on disclosure, (ii) in the event that the Client or its affiliates have securities registered with the United States Securities and Exchange Commission and any ZAKA One Entity is the auditor of the Client or any of its affiliates, in which case there are no restrictions or limitations on the disclosure of ZAKA One’s advice, opinions, reports and other work product provided hereunder, or (iii) to the extent the United States Internal Revenue Code and applicable Internal Revenue Service guidance relating to confidential tax shelters (or comparable law or guidance from other taxing authorities) apply, in which case there are no restrictions or limitations on the disclosure of ZAKA One’s advice, opinions, reports and other services. Client shall use the advice, opinions, reports or other work product of ZAKA One solely for the purposes specified in the engagement letter and, in particular, shall not, without the prior written consent of ZAKA One, use any advice, opinion, report or other work product of ZAKA One in connection with business decisions of any third party or for advertisement purposes. All Services are only intended for the benefit of the Client. The mere receipt of any advice, opinions, reports or other work product by any other persons is not intended to create any duty of care, professional relationship or any present or future liability between those persons and ZAKA One. As a consequence, if copies of any advice, opinions, reports or other work product (or any information derived there from) are provided to others under the above exclusions, it is on the basis that ZAKA One owes no duty of care or liability to them, or any other persons who subsequently receive the same.    

(c) In addition, the Client acknowledges and agrees that any such information that comes to the attention of ZAKA One in the course of performing this engagement may be considered and used by ZAKA One in the context of responding to its professional obligations as the independent accountants for the Client.

(d) The Client can transfer to ZAKA One the information about the Client’s identified or identifiable individuals (hereinafter, Personal Data and Personal Data Subjects accordingly). ZAKA One shall have the right to process the Personal Data only for the purposes of executing the Contract, rendering of the Services under the Contract, as well as for the purposes and in cases provided for by the legislation of the Netherlands (including, but not limited, to anti-money laundering, financial and currency regulations, debt recovery). The Client herewith agrees that ZAKA One shall have the right to disclose Personal Data to the firms which belong to ZAKA One for the purposes stated herein without the Client’s consent. ZAKA One shall process Personal Data in compliance with security obligations equivalent to those legally imposed on the Client. The Client expressly agrees to the provisions provided for in this section and guarantees that the above mentioned ZAKA One’s actions with respect to Personal Data are agreed with Personal Data Subjects.

(a) Any provisions of the Contract which either expressly or by their nature extend beyond the expiration or termination of this Contract shall survive such expiration or termination, including, without limitation, paragraphs 1(b), 3, 5, 6, 8, 9, 10, 11, 12, 13 and 15. 

(b) If any provision of this Contract is found by a court of competent jurisdiction or other competent authorities 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. The provisions of paragraphs 1, 6, 7, 8, 12, 13 and 14 hereof shall apply to the fullest extent of the law, whether in contract, statute, tort (such as negligence), or otherwise, notwithstanding the failure of the essential purpose of any remedy. 

(c) ZAKA One Entities are intended third-party beneficiaries of these terms. Any ZAKA One Entity may in its own right enforce such terms, agreements and undertakings.

Neither party may assign or otherwise transfer this Contract without the prior express written consent of the other, except that ZAKA One may assign any of its rights or obligations hereunder to any ZAKA One Entity and to any successor to its business. Neither party will directly or indirectly agree to assign nor transfer to a third party any claim against the other party arising out of this Contract.  

The Client shall indemnify and hold harmless ZAKA One, any other ZAKA One Entity and their respective personnel from all third party Claims, except to the extent finally judicially determined to have resulted primarily from the intentional misconduct of ZAKA One, any other ZAKA One Entity or their respective personnel. In circumstances where all or any portion of the provisions of this paragraph are finally judicially determined to be unavailable, the aggregate liability of ZAKA One, other ZAKA One Entities and their respective personnel for any Claim shall not exceed an amount which is proportional to the relative fault that their conduct bears to all other conduct giving rise to such Claim.

This Contract, including exhibits and all matters relating to it, shall be governed by, and construed in accordance with, the laws of the Netherlands (without giving effect to the choice of law principles thereof). Any action or proceeding arising out of or relating to this Contract or the Services shall be brought and maintained exclusively in the courts of Rotterdam (the Netherlands) in accordance with the requirements of the effective laws of the Netherlands. The parties hereby expressly and irrevocably (i) submit to the exclusive jurisdiction of such court for the purposes of any such action or proceeding and (ii) waive, to the fullest extent permitted by law, any defence of inconvenient forum to the venue and maintenance of such action in such court. 

(a) 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 Contract, as well as other means of communication used or accepted by the other.

(b) It is recognised that the internet is inherently insecure and that data can become corrupted, communications are not always delivered promptly (or at all), and that other methods of communication may be appropriate. Electronic communications are also prone to contamination by viruses. Each party will be responsible for protecting its own systems and interests and, to the fullest extent permitted by law, will not be responsible to the other on any basis (contract, tort or otherwise) for any loss, damage or omission in any way arising from the use of the Internet or from access by any ZAKA One Entity personnel to networks, applications, electronic data or other systems of the Client Group.

Nothing discussed prior to execution of the Engagement Letter induced, nor forms part of, the Contract unless as specifically set out in this Contract. This Contract supersedes any previous agreement, understanding or communication, written or oral, relating to its subject matter. No variation to the Contract shall be effective unless it is documented in writing and signed by authorised representatives of both parties, provided, however, that the scope of Services set forth in the Engagement Letter may be changed by agreement of the parties in writing, including by e-mail or facsimile. If ZAKA One has already started work (e.g., by gathering information, project planning or giving initial advice) then the Client agrees that this Contract is effective as of the start of such work.

Notwithstanding anything herein to the contrary, ZAKA One may use the name of the Client and the performance of the Services in marketing and publicity materials, as an indication of its experience, and in internal data systems.