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Case Study – Marketing and Sales Company

Introduction

This video provides an overview of the actual valuation report for a marketing and sales company. Regardless of the business you own or the industry you operate within, the fundamental valuation tools and techniques are the same, and all business certified reports are structured in the same way. We also take confidentiality very seriously here at BizWorth, so we’re going to show you an actual report, but we’ve changed the company’s name, the valuation dates and all specific underlying information regarding the company.

About BizWorth

The experts at BizWorth will help you thoroughly research and pinpoint the reliable value of your company with a certified business valuation that meets professional standards and mitigates tax and legal risks associated with buying or selling your  business, partner buyouts, buy/sell agreements, share redemptions, SBA loans, or making big changes in your business plans. Visit us: www.BizWorth.com Contact us: www.BizWorth.com/Contact-us/

Transcript

Sheila Darby with BizWorth here. Thanks for joining me for another case study. Today we’re going to review a marketing and sales company. This type of company sits within the management consulting industry and this is a niche within that industry. Please keep in mind that if you are an owner of a marketing and sales company, or looking to find out more information, we will use some specific information particular to these types of companies and industries. Generally speaking, if you’re an owner of any type of business you are likely going to find this case study helpful because we will be discussing general valuation concepts and how we lay out our business appraisal reports.

Let’s jump into this business appraisal report for this marketing and sales company. You will see that we start every business appraisal report with the date of the valuation, and that’s important because we’re including all known and knowable information up until that date. All our business appraisers are certified valuation professionals and most all of us are certified through the NACVA organization. All of our business appraisal reports are very clear to discuss: What are we valuing? For this marketing and sales company, (for confidentiality purposes, we changed a lot of the key identifying information about this company) but for this case study, this company had 12% non-controlling and non-marketable ownership interest. That’s important because sometimes discounts are applicable for different ownerships or depending on what partner agreements say, discounts can be applicable and sometimes premiums are applicable as well.

Here are the Table of Contents. Regardless of the type of business you are, we lay out our business appraisal reports in the same way. We start with an Executive Summary, which I’ll show you. Then we go through an Introduction where we talk about the valuation engagement and the particular information that we used for this engagement. The Nature and History of the company, the Overview of the Economy and Industry (we’ll discuss why those aspects are important to a valuation), the Financial Condition and Earnings Potential of the subject company, and then we get into the Valuation. We really walk you through step-by-step how we valuate a particular business, and then there’s quite a few appendices in this report as well.

Let’s move through the first key section – the Executive Summary. We always start off with talking about “of the ownership interest that we valued, what is that percentage interest worth? What’s our conclusion of value?” Here, it’s $335,000 for 12% interest. We value this for a share redemption purpose. There were shares being redeemed within the company (12% of the shares) and the standard of value is Fair Market Value and that means there’s two parties, all the information is known and knowable, nobody’s being duressed into buying or selling, there’s no synergies involved either, so there’s no cost synergies here. That would be known as investment valuation for an example. Then there’s other Key Summary information to the right. Here we are summarizing each key section of the report: What was purpose of this valuation? What’s the nature and the history of the company? This is for people that just have a quick five minutes and they need to review the high-level information quickly.

We go into the Economy and the Industry. We talk about the Financial Conditions and Earnings Potential of the company. We show a quick graph, for example, of something that’s most applicable. Here we chose to show a graph of the revenues and you’ll see the sharp increase in revenues, and these are the growth rates. Even though you see a drop in this line, it’s not bad, there’s still growth. The growth just wasn’t as high as from 2014 to 2015 as it was from 2015 to 2016, for example. This was a fascinating company to value in the marketing and sales space. Here we are Summarizing the valuation and we show what our key approach was in the valuation, our conclusion of value that was attached to that.

Here we have an Introduction section that talks about the standard of value that was chosen, the valuation procedure, premise of value. In this case, the premise of value was a going concern. This was not a company that was winding up or going through bankruptcy.

Nature and History of the company – this again is a marketing and sales company. They

provided contract sales. They went out and placed products with large grocery store chains, and they had a niche market within natural products, and they had deep relationships within that particular industry. They had multiple owners and they also had unique services. They worked intensely on providing not only a high-touch customer service, but also proprietary technology platforms that assisted them with their sales. We go through many interesting things, we talk about revenue, customer concentration. This client had very good customer diversification, but there was one client that really stood out here as being a really large percentage and this one client represented more than the entire share of the profit. That’s not necessarily a bad thing. There was a lot of diversification within this client, but this shows that there was maybe a slight more risk to this company than another company that was completely well-diversified, but that doesn’t necessarily mean terrible things for the valuation. This company had a wonderful valuation and had a lot of great things going for it. It just means that there’s one client that represents a majority of the shares. It’s just a slightly higher risk profile, maybe a slightly higher uptick in the discount rate for example. We’ve valued clients that have only had one customer and sold their business quite successfully. It was a very strong business and lots of other mitigating factors. We also look at Key Person risk. For example, if there’s one person in the business that does everything, there might be a bit of an uptick in their risk profile of that as well as opposed to having lots of people involved, good policies and procedures, and if anyone went absent for a month, the company just kept plugging away. So, lots different things that we look at. Because this is a marketing and sales company, this particular company didn’t have tons of assets. It was service-driven. The competition – there’s quite a bit of competition within this sector, but it wasn’t like a gas station that’s on every single corner for example. So, there was lots of competition but there was also unique and different things within the competition. We talked about the facilities: where they were, and if a company has lots of facilities, we’ll look at how long the leases are in place. We look at the assets, but overall, this company had built up a very strong customer base. They’ve built up good sales procedures and was a very competitive marketing and sales business within the management consulting industry.

The overview of the Economy and the Industry. This is a very important to a valuation and it’s important to understand where the company resides in the geographic region. What are the trends within that region? It’s equally important to understand: what’s happening within the industry? Is the industry in growth mode? Is it in decline mode? What’s the particulars? For a marketing and sales business, like many other businesses, you and your business sit within an industry. The marketing and sales company sat within the management consulting industry in general, but they were serving another industry. They were serving a niche product area of product placements. We also have to look at: what are the growth patterns identified with the niche industry that they’re serving in and that they’re selling for? That’s important as well. We look at both industries in that respect. We look at the opportunities and threats within a particular industry and then we pull it all together and we make a summary. Here we’ll talk about the growth of the industry, consumer spending, in this particular case, and the GDP because that tied back to the consumer products industry that they were serving, and so that’s important for long-term growth. As a valuation company, we don’t want to just guess what a valuation growth rate is. It’s very concrete and we can point to sources. It’s important that just generic growth rates are not used in a valuation.

The Financial Condition and the Earnings potential of the company is reviewed. It’s also benchmarked to competitors and that’s important. Having a thorough look at the financial analysis of the company and the earnings potential helps in many ways. It helps us to identify strengths and weaknesses of a company over time and it provides a basis for comparing the company to others within the same industry. We don’t want to compare to other companies down the street necessarily, but we want to compare to companies within the similar industry. We do a review of the income statements and the balance sheets. We look for not only trends in growth, but we’re also looking for if anything stands out, should there be any normalizing adjustments? Should there be any non-operating type asset adjustments? For example, if a particular company was sitting on a million-dollar piece of real estate, but it wasn’t being used in the business (maybe 10 years down the road it would) we typically normalize for that – we make an adjustment for that non-operating asset and then we add the value of that asset back dollar for dollar at the end of the valuation so it’s not lost in valuation. We look at the profitability. We look at Key ratios for Liquidity Asset Management. This particular company generally was above and doing better than its peers. We look at the debt management, whether they’re carrying a lot of debt. That’s very important particularly for service companies. Sometimes it could be trickier for a service company to carry lots of debt if there aren’t assets sitting behind a company, but that is not always true.

The Valuation of the subject company. We then go in and we talk about the valuation and we talk about all three approaches: the income approach, the market approach, and the asset approach. For this marketing and sales company, we considered multiple methods and the method and the conclusion of value that we ultimately decided upon was based

on a multi-stage growth method. The industry growth had a lot to do with informing us of the growth rates that we used and then ultimately, we ended up with a terminal value that had a growth implied of more general economy and consumer spending growth. We walk through step by step of everything we do within that income approach and that method that we chose down to the discount rate and how we drive the discount rate. Then we move into the next approach, that’s the market approach, and we talk about which method we used. For this company, there was a lot of comparable companies and we chose an EBITDA multiple. EBITDA all is Earnings Before Interest, Taxes, Depreciation and Amortization. We chose the median for that valuation and we placed a value for that market approach. Then the asset approach, we looked at various methods, but ultimately decided not to use the asset approach because the company was a service company and was very asset light, and overall that valuation wasn’t as insightful. We do have sections on potential discounts for this company because we were valuing in a minority interest that had no control and no easy marketability. We considered all those factors. We ultimately talk about where we conclude in the valuation for that 12% interest for this marketing and sales company. After this section, we have lots of appendices. This is really the end of this case study, but don’t hesitate to reach out to us. Feel free to go to www.BizWorth.com. Ask us a question through the Contact Us page. Feel free to set up a free consultation. We’re happy to talk about your valuation needs.

If you like our content and would like to see more, visit our blog or follow us on Facebook, LinkedIn, and YouTube. Thanks so much.

Keywords

  • Business Appraiser
  • Business Asset Valuation
  • Business Valuation Texas
  • Corporate Business Valuation
  • Business Valuation Guidelines
  • Professional Business Appraisal
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Master Services Agreement

This Master Services Agreement (“Agreement”), effective on the date of Company’s initial payment, has been entered into by and between you as an individual or the business entity or organization indicated in the BizWorth Checkout webpage which you validly represent (“you” or the “Company”) and BizWorth, LLC (“BizWorth”), a Texas limited liability company with its principal office at 1900 Saint James Place, Suite 100, Houston, Texas, 77056 both herein collectively referred as the “Parties” or singularly as a “Party.”

RECITALS

WHEREAS, Company desires to engage BizWorth to provide business valuation services; and

WHEREAS, the Parties desire to create a master service agreement pursuant to which BizWorth shall provide, and Company shall purchase, the services described in one or more Engagement Letters issued henceforth. 

NOW THEREFORE, for good and valuable consideration, the sufficiency of which is acknowledged by both Parties, BizWorth and Company agree as follows:

SECTION 1.  CONTRACTOR.

A.  Independent Contractor. BizWorth and Company acknowledge and agree that BizWorth will serve as an independent contractor in the provision of business valuation services (the “Services”) and that no BizWorth employee or contractor will be an employee of Company. BizWorth will be responsible for all employment rights and benefits of BizWorth employees, including, without limitation, (a) federal, state, and local income and employment taxes and social security contributions; (b) workers’ compensation, health benefits, vacation pay, holiday pay, profit sharing, retirement, pension, disability benefits, and other health and welfare benefits, plans, or programs; and (c) insurance. 

B.  Authority. BizWorth will not have any right or authority to assume or create any obligation or responsibility, express or implied, on behalf of Company, or to bind Company, in any manner, and will not make any contrary representation. 

C.  Subcontracting. BizWorth may subcontract its obligations hereunder without permission of Company. BizWorth shall have full responsibility (a) for the provisions of all services, whether performed by BizWorth or its subcontractors, and for the acts, omissions, or negligence of its subcontractors and of all employees of BizWorth; and (b) for compliance by each of its subcontractors with the requirements of this Agreement, and all applicable laws, rules, and regulations, to the same extent that BizWorth would be responsible if it were performing the services directly. 

 

SECTION 2.  TERM.

A.  Term. This Agreement shall commence when executed by both parties.  This Agreement shall remain in full force and effect for a one (1) year term and shall renew automatically for successive one (1) year terms unless terminated as provided in this Agreement or cancelled within the first 30 days of the trial period.  After the first one (1) year term, the Company may terminate this Agreement by providing BizWorth with thirty (30) days’ written notice of termination, with or without cause. Except for those amounts due and relating to ongoing transition services, Company shall pay BizWorth any amounts owed under this Agreement up to the date of termination.  BizWorth may terminate this Agreement by providing Company with thirty (30) days’ written notice of termination, with or without cause. Cancellations may also be submitted online at https://bizworth.com/cancel.

B.  Effect of Termination and Transition Services. Termination of this Agreement or any Engagement Letter shall not limit either party from pursuing other remedies available to it, including seeking injunctive relief. Neither the termination nor expiration of this Agreement shall relieve a party of any of their obligations under Section 8 (Confidentiality), Section 5 (Representations and Warranties), Section 6 (Indemnification) or any other obligations which, by their nature, relate to matters following termination or expiration of this Agreement. Further, BizWorth shall cooperate with Company for the orderly transition of services to Company or a third-party. Such transition services shall be provided in accordance with the terms and conditions of this Agreement and/or applicable Engagement Letter, including fees. 

 SECTION 3.  FEES AND PAYMENT. 

Company shall pay BizWorth the fees and charges set forth in the applicable Engagement Letter. In addition to the foregoing, Company agrees to pay BizWorth the following fees and charges:

A. Recurring Fee. Company agrees to pay BizWorth either the recurring monthly or recurring annual Valuation Partner Program subscription fee. In exchange for such fee, Company shall receive continued access to the benefits of the Valuation Partner Program, including technology portal, on a month-to-month basis. 

B.  Payment Terms. Unless otherwise set forth in the applicable Engagement Letter, Company shall remit payment for the fees and charges set forth in this Agreement to BizWorth no later than twenty (20) days from the issuance of the invoice from BizWorth to Company. For the purposes of clarity, BizWorth shall receive such payment prior to the commencement of (and the continuation of) any Services, including, but not limited to, the monthly access to the technology portal (i.e. payment for access to the technology portal must be paid a month in advance). BizWorth shall submit invoices for payment in accordance with reasonable procedures prescribed by BizWorth and may distribute via BizWorth’s online portal. BIZWORTH RESERVES THE RIGHT TO DELAY THE COMMENCEMENT OF SERVICES AND STOP ALL OR PARTIAL SERVICES, IN ITS SOLE DISCRETION AND AT ANY TIME DURING THE COURSE OF THE ENGAGEMENT IF PAYMENT IN FULL HAS NOT BEEN RECEIVED IN A TIMELY FASHION.

C.  Disputed Amount. In the event of a disputed amount, Company shall pay all undisputed charges and promptly notify BizWorth in writing of such disputed amount. Company shall provide BizWorth with such documentation as necessary to support the validity of any disputed charge.

D.  Removal.  If Company requests that a BizWorth consultant or personnel be removed for any reason other than lack of suitability to perform the Services, or fraud, or misconduct, then Company shall be responsible for BizWorth’s out-of-pocket costs, including reasonable actual travel expenses or lost work product for replacements made in accordance with this paragraph.

E.  Reassignment. Unless otherwise set forth in the applicable Engagement Letter, BizWorth reserves the right to reassign any BizWorth personnel performing services to Company to perform services for other BizWorth clients; however in such an event, BizWorth will assign a replacement resource to perform services to Company and will use commercially reasonable efforts to maintain consistency of its resources for a particular service and ensure such personnel changes do not have a material adverse effect on the services.

F.  Reimbursable Expenses. Except as otherwise provided for in an Engagement Letter, Company will reimburse BizWorth for reasonable out-of-pocket expenses incurred by BizWorth employees and contractors involved in the provision of the services, provided that Company authorizes each expense. 

SECTION 4.  NON-RECRUITMENT.

A.  Unless parties consent in writing, parties agree not to directly or indirectly employ, engage or contract either party’s personnel for at least 120 days’ after the date this contract is terminated within a forty (40) mile geographic area of parties’ principal place of business utilizing personnel to perform the same or similar scope of activity as covered by this Agreement.  Parties agree and consent that the restrictions placed in this Section 4 are reasonable to protect the parties and do not impose a greater restraint than is necessary to protect the parties’ interests.

B.  Parties understand, agree, and acknowledge that either party would be harmed financially if either party employed, engaged, or contracted either party’s personnel. Therefore, parties agree to pay $25,000.00 for each violation of this Section 4. 

C.  Parties will receive a 15-day notice period in the event either party is determined to have employed, engaged, or contracted any personnel of the other party. If personnel remain employed, engaged, or contracted by the hiring party after the notice period, payment will made to the former employer no later than five (5) days after the notice period expires.

 SECTION 5.  REPRESENTATIONS AND WARRANTIES.

A.  From BizWorth. BizWorth represents and warrants:

i. that all services will be performed in a professional and workmanlike manner; 

ii. that it will comply with applicable laws, rules, policies, and regulations in connection with its performance under this Agreement;

iii. that it is qualified to business in the geographics and jurisdictions in which it will perform, and has obtained all necessary licenses, permits, and satisfied any other legal, regulatory, and administrative requirements necessary to its performance hereunder;

iv. that it will not directly or indirectly pay, offer, authorize, or promise any monies or anything of value to any person or organization, including any Company employee, for the purpose of improperly influencing their acts or decisions;

v. there are no conflicts of interest regarding its relationship with Company;

vi. that all of its personnel providing services in the United States are eligible for employment in the United States in accordance with applicable laws. 

B.  From Each Party. Each Party represents and warrants that it has the full right and authority to enter into, execute, and performs its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement. 

SECTION 6.  INDEMNIFICATION.

A.  COMPANY AGREES TO DEFEND, PROTECT, INDEMNIFY, AND HOLD HARMLESS BIZWORTH OR ANY BIZWORTH’S DIRECTORS, OFFICERS, OWNERS, MEMBERS, MANAGERS, PARTNERS, EMPLOYEES, CONSULTANTS, CONTRACTORS, SUBCONTRACTORS, OR AFFILIATES FOR ACTS OR OMISSIONS ARISING OUT OF THIS AGREEMENT OR ANY ENGAGEMENT LETTER FROM AND AGAINST ALL LIABILITIES, CLAIMS, SUITS, DAMAGES, LOSSES, CAUSES OF ACTION, INCLUDING BUT NOT LIMITED TO COSTS AND ATTORNEYS’ FEES, FOR BODILY INJURY OR DEATH OR DAMAGE OR DESTRUCTION OF PROPERTY, REAL OR PERSONAL (INCLUDING DATA), INFRINGEMENT OF ANY INTELLECTUAL PROPERTY, SECURITY BREACH, CAUSED BY COMPANY WHETHER SUCH IS CAUSED BY COMPANY PARTIALLY OR WHOLLY AND WHETHER THE COMPANY ACTS NEGLIGENTLY, RECKLESSLY, WILLFULLY, OR INTENTIONALLY.   

B.  BIZWORTH AGREES TO AND SHALL RELEASE, DEFEND, PROTECT, INDEMNIFY AND HOLD HARMLESS COMPANY FROM AND AGAINST ANY AND ALL CLAIMS FOR (I) ALLEGED UNPAID WAGES, DAMAGES, ATTORNEYS’ FEES, AND COSTS UNDER THE FAIR LABOR STANDARDS ACT (“FLSA”) AND/OR ANY APPLICABLE FEDERAL OR STATE WAGE LAW, AND/OR ANY DISCRIMINATION, HARASSMENT, OR BENEFITS CLAIMS UNDER FEDERAL OR STATE LAW, AND/OR (II) INJURY OR DEATH OF ANY INDIVIDUAL, OR ANY LOSS OR DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY CAUSED BY BIZWORTH OR ITS AGENTS, EMPLOYEES, OR CONTRACTORS DURING OR RELATED TO PERFORMANCE PURSUANT TO THIS AGREEMENT, AGAINST COMPANY AND/OR ITS OFFICERS, DIRECTORS, AND EMPLOYEES. NOTWITHSTANDING THE FOREGOING, BIZWORTH SHALL NOT HAVE ANY OBLIGATION TO INDEMNIFY COMPANY FOR CLAIMS ARISING OUT OF INFRINGEMENT OF INTELLECTUAL PROPERTY PROVIDED TO BIZWORTH BY COMPANY, TO INCORPORATE INTO DELIVERABLES, IN ORDER TO FULFILL THE SERVICES UNDER THIS AGREEMENT.

C.  LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, WHETHER THE CLAIM IS BASED IN TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR IN CONTRACT, AT LAW OR IN EQUITY, INCLUDING WITHOUT LIMITATION, LOSS OF PROFIT, EVEN IF ADVISED OF THE POSSIBILITY THEREOF. NOTWITHSTANDING THE FOREGOING, THERE ARE NO LIMITATIONS ON LIABILITY ARISING UNDER SECTION 8 (CONFIDENTIALITY) AND SECTION 6 (INDEMNIFICATION). IN ALL OTHER RESPECTS, THE PARTIES INTEND AND AGREE TO LIMIT THEIR RESPECTIVE LIABILITY TO DIRECT DAMAGES ONLY, TO THE MAXIMUM EXTENT ALLOWED BY LAW.

SECTION 7.  NOTICES. 

The parties contemplate that they will engage in informal communications with respect to the subject matter of this Agreement.  However, any formal notices or other communications (“Notice”) required to be given by one party to the other by this Agreement shall be given in writing addressed to the party to be notified at the address set forth below for such party, (i) by delivering the same in person, (ii) by depositing the same in the United States Mail, certified or registered, return receipt requested, postage prepaid, addressed to the party to be notified, or (iii) by depositing the same with a nationally recognized courier service guaranteeing “next day delivery,” addressed to the party to be notified,(, or (iv) by sending the same by electronic mail with confirmation of delivery by return email.  Notice deposited in the United States mail in the manner herein above described shall be deemed effective from and after the date of such deposit.  Notice given in any other manner shall be effective only if and when received by the party to be notified.  For the purposes of notice, the addresses of the parties, until changed by providing written notice in accordance hereunder, shall be as follows:

All notices and communications under this Agreement shall be sent to BizWorth at the following address:

BizWorth, LLC

Attn: Legal Department

1900 Saint James Place, Suite 100

Houston, Texas, 77056

Fax: 1-800-677-1331

Email: officeadmin@bizworth.com

 

All notices and communications under this Agreement shall be sent to Company at the address identified on the signature page of this Agreement.

SECTION 8.  CONFIDENTIALITY.

A.  As used in this Agreement, the term “Confidential Information” means any and all technical and non-technical information, including trade secrets, know-how and proprietary information, firmware, designs, schematics, techniques, plans, development plans, operational plans and strategies, business methods, consulting and analytical reports, current and planned technology, and plans, processes and practices relating to the sales of any business or ownership interests of any kind, any proposals, strategies, concepts, analyses, surveys, ideas, or research or any other information relating to any research project, work in process, future development, marketing or business plans or financial or personnel matters relating to either Party or its present or future products, sales, suppliers, customers, employees, investors or affiliates and disclosed or otherwise supplied in confidence by either Party to the other Party, acquired in the course of carrying out the tasks hereunder or as a result of access to the premises of a Party (including in the context of a request for information or request for proposal, or related to discussions between the Parties in anticipation of a potential Engagement Letter). Confidential Information includes (i) information disclosed in a written or other tangible form; (ii) information disclosed orally or visually; (iii) any other information which a reasonable person would deem confidential under the context of disclosure or due to the nature of the information; and (iv) in the case of Company, information received from third-parties in confidence or belonging to others and licensed and disclosed to Company in confidence for the performance of defined services.  The list set forth above is not intended by the Company to be a comprehensive list of Confidential Information. All Confidential Information shall be treated as Confidential Information regardless of whether it pertains to the Company, its affiliates, its agents, or its clients and regardless of whether it is stamped as “confidential.”

B.  Each Party acknowledges that the success of each Party depends in large part on the protection of Confidential Information.  BizWorth further acknowledges that in the course of performing services for the Company, BizWorth will become familiar with the Company’s and its client’s Confidential Information. BizWorth recognizes and acknowledges that the Company’s and its client’s Confidential Information is a valuable, special, and unique asset of the Company’s and/or it’s client’s business, access to and knowledge of which are essential to the performance of BizWorth’s services hereunder.  BizWorth acknowledges that use or disclosure of the Confidential Information outside the performance of BizWorth’s services for the Company would cause harm and/or damage to the Company.

C.  Both during or after the term of this Agreement, each Party agrees that it will not, except in the ordinary course of performing services, disclose any Confidential Information to any person, firm, business, company, corporation, association, or any other entity for any reason or purpose whatsoever. Company also agrees that it will not make use of any Confidential Information for its own purposes or for the benefit of any person, firm, business, company, corporation, or any other entity (except the Company) under any circumstances during or after the term of this Agreement.  Company accepts responsibility and shall be directly liable to BizWorth for any breach of this confidentiality provisions by Company or any of Company’s representatives.  Each Party shall consider and treat as confidential all Confidential Information in any way relating to business and affairs, whether created by a Party or otherwise coming into its possession before, during, or after the term of this Agreement. Neither Party shall use or attempt to use any Confidential Information in any manner which has the possibility of injuring or causing loss, whether directly or indirectly, to the other Party or its affiliates.  Each Party shall not, after the termination of this Agreement, use, disclose, or permit to be used or disclosed, any such Confidential Information.

D.  Reverse Engineering. Company shall not attempt to procure any proprietary and confidential information and materials from a BizWorth consultant, reverse engineer any of BizWorth’s portals, reports, Company-generated reports designed by BizWorth, processes, procedures, operations, standards, policies, or methods.  Company shall not disclose, directly or indirectly any of BizWorth’s proprietary or Confidential Information, or use, in any way, such information except as authorized for a BizWorth consultant or consultants.

SECTION 9.  OWNERSHIP. 

A.  Deliverables. BizWorth shall own all right, title and interest (including patent rights, copyrights, trade secret rights, mask work rights, trademark rights, sui generis database rights and all other rights of any sort throughout the world) relating to any and all invention (whether or not patentable), works of authorship, mask works, designations, designs, know-how, ideas, materials, reports, data, documentation, deliverables, or other materials or information made or conceived or reduced to practice, in whole or in part, by BizWorth, in connection with the Services or any Confidential Information of BizWorth (collectively, “Deliverables”). The Deliverables are not works for hire, and Company hereby assigns and makes all assignments necessary to accomplish the foregoing ownership. Company shall further assist BizWorth, at Company’s expense, to further evidence, record, and perfect such assignments, and to perfect, obtain, maintain, enforce, and defend any rights assigned. Company hereby irrevocably designates and appoints BizWorth as its agent and attorney-in-fact to act for and in Company’s behalf to execute and file any document and to do all other lawfully permitted acts to further the foregoing with the same legal force and effect as if executed by Company.

B.  No Expectation of Privacy. Company recognizes and agrees that Company has no expectation of privacy with respect to BizWorth’s telecommunications, networking, or information processing systems (including, without limitation, stored computer files, email messages and voice messages) and that Company’s activity, and any files or messages, on or using any of those systems may be monitored at any time without notice.

C.  Grant of License. If any part of the Services, Deliverables or other materials provided by Company to BizWorth is based on, incorporates, or is an improvement or derivative of, or cannot be reasonably and fully made, used, reproduced, distributed, or otherwise exploited without using or violating technology or intellectual property rights owned or licensed by Company and not assigned hereunder, Company hereby grants BizWorth and its successors and assigns a perpetual, irrevocable, worldwide royalty-free, non-exclusive, sublicensable right and license (a) to exploit and exercise all technology and intellectual property rights in support of BizWorth’s exercise or exploitation of the Services, Deliverables, other work performed hereunder, or any licensed or assigned rights (including any modifications, improvements and derivatives of any of them), (b) to allow its subcontractors who are parties to a non-disclosure agreement to exploit and exercise all such technology and intellectual property rights (both on site and in an outsourced environment) in connection with the performance of services for Company, (c) to exploit and exercise such technology and intellectual property rights on behalf of any affiliates, and (d) to allow its affiliates to exercise any of the rights granted herein, in whole or in part.

SECTION 10. MISCELLANEOUS.

A.  Entire Agreement. This Agreement and any Engagement Letter(s) that specifically reference this Master Services Agreement constitutes the entire Agreement between the parties relating to the rights herein granted and the obligations herein assumed.  Any oral or written representations or modifications concerning this Agreement shall be of no force and effect unless such representations or modifications are in writing and signed by both parties. If there is a conflict between this Agreement and any Engagement Letter(s), this Agreement shall control.

B.  Severability. In the event that any provision(s) of this Agreement shall for any reason be held invalid, illegal, or unenforceable, the invalidity, illegality or unenforceability of that provision(s) shall not affect any other provision(s) of this Agreement, and it shall further be construed as if the invalid, illegal, or unenforceable provision(s) had never been a part of this Agreement. 

C.  Assignment. BizWorth may, at any time and for any reason, assign or transfer all or part of this Agreement at its sole discretion. BizWorth shall provide written notice of assignment or transfer to the Company.

D.  No Waiver.  Any failure by either party to enforce any provision or condition of this Agreement shall not be construed or deemed to be a waiver of any such provision or condition of this Agreement, nor a waiver of a subsequent breach of the same provision or condition or any other provision or condition.

E.  No Third-Party Rights. Nothing in this Agreement, express or implied, is intended to or shall confer upon any person or entity (other than the parties hereto) any right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

F.  Governing Law and Dispute Resolution.  If a dispute, cause of action, or alleged breach of this Agreement arises, the parties agree to first attempt to resolve such informally before bringing any lawsuit unless such dispute, cause of action, or alleged breach presents an imminent injury or harm in which case, a lawsuit, declaratory judgment, injunction, or other legal action may be initiated immediately by either party. This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of Texas without regard to conflicts of law principles and venue shall be in Harris County, Texas.

G.  Non-Exclusivity. Company acknowledges that BizWorth may engage in other business activities during the term of this Agreement and may be employed or retained by others. Company acknowledges that BizWorth enters into similar agreements with parties other than Company for services the same as or similar to those Company provides. 

H.  Injunction. Each Party agrees that breach of Section 8 (Confidentiality) or a Party’s violation of data protection requirements would cause the non-breaching party irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, the injured party will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.

I.  Return of Property. Upon a disclosing Party’s request or upon termination of an Engagement Letter and subject to BizWorth’s professional requirements as incorporated into BizWorth’s data destruction policy, the receiving Party will return to disclosing Party all property placed in the receiving Party’s possession or control pursuant to this Agreement.

J.  Interpretation. This Agreement will be construed as a whole according to the fair meaning of its language and, regardless of who is responsible for its original drafting, will not be construed for or against either party.

K.  Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument.

L.  Electronic Signatures. Signature pages may be signed manually or electronically and may be transmitted by facsimile or another secure mode of transmission. Electronic signatures and electronically transmitted signatures shall have the same legal effect as an original. 

M.  Data Protection and Security Requirements. Where a Party has (i) access to software or systems collecting, storing, or processing Personal Data (defined herein as any information related to an identified or identifiable living person), on a Party’s networks or hosted externally to a Party’s environment; or (ii) access to data extracted from a Party’s systems, each Party will work in good faith to establish data protection requirements set forth by the other Party.

N.  Publicity. Each Party hereby grants to the other the Party the express right to use BizWorth’s company logo and/or Company’s logo and/or name in its quarterly press releases, investor/customer presentations, social media, and its website to identify Company as a BizWorth customer or for Company to identify BizWorth as its valuation partner. Other than as expressly stated herein, neither Party shall use the other Party’s name and/or logos without the prior written permission of the other Party.

O.  Reports Sold Separately. Because valuation reports are customized to the unique needs of each business, reports are sold separately and are not included with a Valuation Partner Program subscription.