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Reasons Why You Need a Business Valuation

Abstract

This video covers some of the many reasons why business valuations are necessary, why you may need a certified business valuation, and how BizWorth can help.

For more about our Certified Business Valuations…

Introduction

Learn why you may need a certified business valuation and how BizWorth can help. This video covers some of the many reasons why business valuations are necessary. From starting your business to growing, litigating, retiring and selling – there is only one constant – your business is always changing. Whether your business is drafting a buy-sell agreement, seeking an SBA loan, resolving a partner dispute, exploring an acquisition or divestiture, or contemplating gifting shares, BizWorth can provide the certified business valuation you’ll need.

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

Hi, thanks for joining me for this video blog. My name is Sheila Darby with BizWorth. Today we’re going to cover “What is a Business Valuation?” Particularly, what are all the reasons why you may need a business valuation? We get asked a lot from business owners:

  • “When is the right time for my business to be valued?”
  • “Why do I need a business valuation from a certified third party?”

First, the one thing we’ve learned throughout the many years we’ve been valuating businesses and the different business owners we’ve worked with, one thing is constant, and that is: business is always changing. Your business probably doesn’t look anything like what it looked like a year ago. Now, not all those reasons necessitate getting a third-party valuation, but there are a lot of good reasons why you would need one.

The first is starting up your business or buying a business, particularly if there’s an SBA backed loan involved. The SBA administration requires an independent third-party valuation from a certified professional to provide a valuation for any loans over $250,000. Outside of that, if it’s less than $250,000, it’s always a good idea to have a valuation particularly if you’re using that loan to purchase a business. The banks will require it because it’s mandated by the SBA loan and when they get audited, they’ll have to show proof of that valuation. It also informs whether the valuation loan amount makes sense based on that valuation.

Next, buying. If you’re buying into a business that has other owners. Maybe you’re buying in for a particular number of shares or you want to sell a lot of your shares. You will want to have a buy sell agreement up front, which is considered a will between the owners. What happens if? So, you’ll want to think of all the scenarios where you need a business valuation and how to document how you’re going to conduct that business valuation. At the very minimum, you’ll want to address that there will be a valuation from a certified independent third party. That’s important. You don’t want it from a biased broker who may be incentivized to have a high price thinking that he’s going to sell your business or your shares out on the open market, or price it too low for various reasons. Certified independent appraisers have to maintain a code of ethics when they provide business valuations. In order to adhere to those professional standards, they conduct valuations in a very structured way. So, it’s great to identify in a buy sell agreement that there will be an independent third party appraiser valuing the shares and from there, you can start to outline all the specifics regarding what you’ll need in that valuation. The more you describe in the buy sell agreement, the easier the buying or selling of those shares will be down the road.

Fairness opinions are valuable when you’re getting ready to sell your business and there’s multiple owners and there’s a risk of a dissenting shareholder. A dissenting shareholder is when there’s one particular shareholder you don’t feel will agree with the selling of the company. In that case, there could be legal action and a lawsuit involved. A fairness opinion is very important to avoid lawsuits. If you’re thinking about buying or selling your company and you feel there may be dissenting shareholders, that fairness opinion will be important.

Next, growing your business. You might be at an exciting stage of your business where you’re thinking about having an ESOP (employee stock ownership plan). This ESOP will require that you have an annual valuation of your business for the valuation of the shares and employee benefit plans. Certain ones may require that as well, but ESOPs particularly. If you’re thinking about instituting an ESOP, understand what that is up front, what the annual costs will be and know that you will need an independent third-party valuation. Those are governed by the Department of Labor so you’re going to want to make sure that you have all your ducks in a row. You’re likely already working with an attorney on the ESOP and setting that up in getting the yearly valuation of your company.

Next, expanding your business. This is always an exciting stage. You’re thinking about expanding your business through M&A, shareholder transactions, or capital infusions. If you’re at that point where you’re looking at buying or selling an additional company, acquiring an additional company and folding them into your existing operations, having a capital infusion from shareholders or even debt, the business valuation is critical. You want to make sure you’ve got a solid valuation of your firm and that you’re not selling your shares for less than what they are worth. If you’re expecting too much for your shares, you may find that it’s very hard to have a capital infusion because other people may view your shares differently. So that neutral third-party appraiser is going to be very valuable for you, understanding what the true value of your business is and understanding what all your options are for valuing your business.

Next, is all the legal reasons why you may want your business valued. Everything from bankruptcy and insolvency opinions to partner disputes to dissenting shareholders which goes back to that fairness opinion that we discussed a minute ago to marital dissolutions. I’ll touch on two things here in particular: 1) Partner disputes. We handle a lot of valuations for partner disputes and a recommendation I have is that before the disagreements go too far, it’s always a great idea to have both of the partners come together and say, let’s hire a neutral third party to value these shares. That way the two partners are both the client of the shareholder and the appraiser has equal access to both partners. Both partners feel like they’re being heard, and you’ll get a good valuation. Even if both shareholders go out their own way and get their businesses valued, it’s important to have a certified valuation from a credentialed professional who is adhering to professional standards. 2) Marital Dissolution (divorces). I have seen countless times where one spouse goes out and hires, for example, a broker that buys and sells businesses. That business valuation, I can almost guarantee you, will not adhere to professional standards, would not truly hold up in a court of law and the value will be way off the mark, whether it’s really high or really low. I’ve seen this time and time again, so you want to have a credentialed third-party valuator valuing the business for any legal claims. If you don’t, you run the risk of looking biased in the courtroom or at the negotiating table

Selling your business: you may be at the point in your life where you want to sell the business for a host of reasons. We handle lots of valuations for selling a business. Lots of owners come to us and say, “what is a fair price for my business?” Some owners may or may not have already spoken to a business broker. Some may be wanting to list their business out on a website. There’s lots of great websites where you can list your business depending on the size and the complexity of your business. There’s good and not so good reasons for listing your businesses on independent third-party sites. For some businesses, it works really well. Even if you’re working for a broker, we’ve worked with countless owners ranging from very small restaurants that make a few hundred thousand a year all the way to very large multimillion dollar businesses, up to about $100 million businesses that want to sell their business and have a good idea of what their businesses are worth.

So whether you’re selling your business because it’s the right time or whether you’re thinking about starting to gift your shares to friends and family, you want to have an independent third party valuator. From an estate perspective, if you do not have your shares valued and you do get an audit from the IRS, you run the risk of the IRS saying “that’s not a good valuation” and they contest it. If they do contest it and you feel absolutely certain it’s a fair price, you may go to tax court. I have seen so many of these cases thrown out by the judge if there was a certified professional involved in the valuation of your business, so it’s really a good risk mitigant and good protection for you, as a business owner, to have that valuation from a neutral third party. It gives you confidence when dealing with the IRS.

Certified business valuations in general: 1) you want to protect your investment. You’ve worked an entire lifetime thinking or planning or saving and then running their business. You want to protect your investment by having a certified valuation. 2) You want to be able to negotiate with confidence. When you get a certified valuation, you’re getting a very robust report that speaks about your business and how the valuation was conducted so when you walk into a negotiation, you are armed with valuable information about the valuation of your business and you’re prepared for an in depth conversation. It’s not “I think it’s this” or “I’ve seen most businesses are trading at this multiple”. It makes sense, it’s concrete and you know exactly why your business has been valued what it’s been valued. 3) You want to adapt your business to change. Before you make key decisions in growing, expanding or winding down your business, you want to have a business valuation for peace of mind.

Real quickly, there are some key myths around business valuations, and we’ll have another video blog that discusses these valuations in depth.

  1. ‘Rules of Thumb” are a quick and accurate way to value your business. It’s not accurate whatsoever. It is quick. A rule of thumb is you hear that businesses in your industry are worth maybe “2x revenues” or “6x see the door”. Even if that is correct and it’s in the general neighborhood, that’s for an average business. The thing about averages is that it’s an average. It’s not the exact multiple that other businesses trade at. They typically are trading at wide ranges of those multiples and your business could be much higher than the average. Don’t settle for the average.
  2. All business valuations are created equal. I’ve been valuing businesses for over 20 years. Not all business valuations are created equal, so be very careful what you’re getting ready to purchase.
  3. My CPA can value my business. A majority of CPA’s are not certified business evaluators, so if you go to your CPA to value your business, you’re not getting an individual that has been certified or that adheres to professional standards for business valuations.
  4. The value of my business is equal to its assets minus liabilities (net worth). There’s lots of things you need to be careful of here. 1) Book value: when you’re looking at your balance sheet, your book value, almost always is not going to be applicable to your business because of the depreciation of those assets. 2) If it is an adjusted net asset value of your business, where your assets and your liabilities are marked to the market value, that still likely is not a good valuation of your business. In some cases, that is better for bankruptcy but be very careful with that.
  5. “I don’t need a valuation to sell or buy my business.” You’re likely going to overestimate the value of your business and it’s going to be really hard for you to sell, or tragically on the downside, you’re going to underprice your business and sell really quickly but you’ve probably just left it a fair bit of money on the table.

So be informed. You’ve been so informed about what you do and the profession that you’re in with your business, you’re steeped knowledge, you know all about your business. Also, I encourage you to know about the value of your business. Don’t leave hard earned money on the table when it comes time to sell your business.

I hope this video blog was helpful. Please reach out if you have any questions. If you go to our web site, www.BizWorth.com, you can schedule an appointment to meet with me or one of our advisors to talk about your business valuation. Even if you’re not sure it’s the right time for a business valuation, hop on a free consultation and let’s talk through that. We’re always happy to help business owners so feel free to reach out. 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 Valuation Texas
  • Corporate Business Valuation
  • Estate Valuation Services
  • Professional Business Appraisal
  • Business Valuations Near Me
  • Business Appraisal for Divorce
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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.