11. AGREEMENT FOR TAX CREDIT SERVICES OTHER GENERAL TERMS & CONDITIONS.
11.1 DEFINITIONS. As used in this Agreement, the following words shall have the meanings set forth below unless other noted otherwise.
“Branded Web Portal” is defined as the Web Portal provided to Client that includes (i) branded logo (ii) Tax Credit Screening Form for hires to submit without a log in requirement. (iii) branded administrative portal to access reports.
“IRS Form 2848 or Declaration of Representative” is defined as form required by the Internal Revenue Service or by the state in order for Client to declare a representative to act on its behalf for state or federal tax credits, required for TCG. Client agrees to submit a completed properly executed IRS Form 2848 within 5 days of request by TCG.
“Payroll Report,” is defined as a report the Client is to provide TCG detailing all hires and rehires made by the Client in the previous month or time period requested by TCG. Report shall be in excel file format and include the following (a) list of all active and terminated hires for the time period requested (i) entire social security number for each hire or rehire. (ii) hire date, application date or start date for each hire or rehire and (iii) first name and last name of hire or rehire. (iv) gross wages and hours earned for each hire.
“Hire” is defined as an individual who completes for Client any of the following forms for the Client (i) IRS Form W-2, (ii) Form I-9
“Services,” as described in Article 1 & Article 6.
“Submission Rate” is defined as the percentage of Tax Credit Screening Forms submitted for all those hired.
“Tax Credit Certification” is defined as the official document issued by each state’s department of labor that indicates which targeted group an employee is certified for under the WOTC program or any other tax credit.
“Tax Credit List,” is defined as an annual report in spreadsheet format sent to the Client detailing the Tax Credit Certifications issued and outlining all of the information required (gross wages, gross hours) by TCG to process and verify Client’s tax credit entitlements and complete the Tax Credit Report.
“Tax Credit Submission Report,” is defined as the monthly or quarterly report TCG generates after receiving the Payroll Report, which details: (i) the total hires made by Client for that month; (ii) the total hires not submitted by the Client; and (iii) the Submission Rate.
“Tax Credit Report,” is defined as the annual report produced by TCG describing all employees who received a Tax Credit Certification, the amount of the tax credit entitlements earned by the Client for a given employee, and the total amount of tax credits processed and calculated by TCG for that year.
“Tax Credit Screening Forms,” is defined forms TCG provides to the Client either online or via paper for the purpose of screening the Client’s hires for eligibility under the WOTC program and other applicable tax credits defined in Article 1.
“Account Service” is defined as TCG providing access to Tax Credit Screening Application, Dedicated Account Manager and Account Maintenance defined in Article 6 that Client pays a monthly fee for. Client may opt to pay the monthly account fee in annual installments Client will receive a discount at a rate of 10% from the total amount fee due for (12) months.
“Account Manager “ is defined as an individual (i) oversees the Account Maintenance of the Client, (ii) shall be representative for the Client account and to whom Client shall communicate to regarding questions on Services. (iii) shall communicate and respond to Client requests and questions.
“State Tax Incentives” is defined as any state employer Tax Credit, refund, job creation tax credit, research & development tax credit, hiring tax credit, geographic based tax credit or job investment tax credit enacted by the States or federal government.
“Disaster Credit” is defined as any federal tax credit, incentive, or tax refund enacted as a result of a natural disaster.
12. BEST EFFORTS.
TCG cannot guarantee any results from performance of the services. TCG will utilize its best efforts, which include, but are not limited to, following up with the Client regarding new hires submitting tax credit forms, tracking all applicable tax credits, submitting all applicable forms, and reasonably following up with the pertinent agencies. In order to obtain all available tax credits on behalf of Client agrees to submit to TCG within (15) days of request (a) payroll reports, (b) copy of hire reports submitted to the states, (c) copies of employee identification forms such as drivers license and I-9’s and social security identification cards. In the event Client fails to provide all available information, forms, and documents TCG shall not be liable for its inability to capture any tax credits which otherwise could have been obtained. TCG shall utilize commercially reasonable efforts and apply its professional experience and expertise to achieve the goals established by the parties, within the bounds of the commitment, and with the cooperation of Client. TCG shall not be liable for any special, consequential or incidental losses or damages resulting from any alleged negligence, breach of this Agreement, or other act or omission. The exclusive remedy for any claim the Client may possess arising out of the failure of TCG to perform under this Agreement shall be TCG’s performance of the Services described herein.
13. EXCLUSIVITY.
Client shall not be permitted to contract with any other party including the Client itself it’s subsidiaries or parent Company for the provision of the Services defined in Article 1 during the term of this Agreement. TCG shall be permitted to contract with other third-parties to provide Services to Client at its sole discretion and as is necessary to maximize Client’s applicable tax credits.
14. NON-DISCLOSURE & COVENANTS.
14.1. Confidential Information, Defined. For the purpose of this Article 14. the term “Confidential Information” shall include, but is not limited to the following:(a) for TCG, any and all information on TCG’s secured website and TCG’s customized tax credit screen forms, method, techniques, agreements, applications, controls, programs, management and financial strategies, and such other information not otherwise available in the public domain; and (b) for the Client, any and all records, data, trade secrets, proprietary suppliers, customers, customer requirements, business operation techniques, and other similar information owned or used in the course of Client’s operations. “Confidential Information” shall not include any information, idea, concept, know-how or methodology (i) previously known to the recipient without obligation of confidence, (ii) independently developed by it or for it without reference to any Confidential Information and prior to the commencement of the Services, (iii) acquired by the recipient from a third-party which was not under an obligation of confidence with respect to such information, or (iv) which is or becomes publicly available through no breach of this Agreement. TCG shall not be liable to Client in the event online information is accessed by a third party through no fault of TCG.
14.2. Non-Disclosure Required. TCG and Client shall not divulge, use, or allow to be used, by any other person within its control, any Confidential Information without the prior written consent of the other party, with the exception that the parties may use the information within the parties’ performance of or receipt of the Services of this Agreement.
14.3. Injunctive Relief. The parties acknowledge any disclosure of Confidential Information or breach of any part of Article 14.2.,14.3. will give rise to irreparable injury that will be inadequately compensable in damages. Accordingly, either party may seek and obtain injunctive relief against the breach or threatened breach of Article 14.2.,14.3. , in additional to any other relief or damages to which a party may be entitled. This Section shall survive the termination of this Agreement for any reason.
15. TERMINATION.
15.1. Notice of Termination. A Notice of Termination must be sent by registered or certified mail, postage and charges prepaid, and return receipt requested. Notice must be sent (6) months prior to the expiration of the then current Term.
15.2. Notice and Cure of Breach. In the event a material breach of this Agreement occurs by either party, the non-breaching party shall give the breaching party 20 days written notice describing: (a) a material breach of this Agreement has occurred, (b) the nature or Article of the material breach; and (c) a remedy applicable to the material breach. If the alleged breach is not cured within 20 days, the non-breaching party shall reserve the right to terminate this Agreement by serving upon the breaching party a Notice of Termination due to Breach. (d) In the event Client is the breaching party and fails to cure or respond to breach within (20) days, Client shall pay the Early Termination fee as defined in Article 15.5. upon TCG providing Notice of Termination due to breach and invoice to Client.
15.3. Termination of Agreement. At the termination of this Agreement, all Confidential Information which is in tangible form and which is in the possession or control of the receiving party shall be returned to the disclosing party at the disclosing party’s written request.
15.4. Renewal Term. This Agreement shall automatically renew for (5) years “Renewal Term” and shall continue to renew in this manner in perpetuity unless and until either party provides a Notice of Termination described in Article 15.1.
15.5. Early Termination. Termination of this Agreement during the Agreement’s original term or any subsequent term requires that the parties sign and execute an Early Termination Agreement. Consent to the Early Termination Agreement cannot be unreasonably withheld. In the event the Client initiates termination under this Provision, Client agrees to pay an early termination fee of $500.00 for each month remaining under the existing term of the Agreement.
15.6. Compensation Owed at Termination. Upon termination of this Agreement, TCG shall be entitled to be compensated for all Services performed and outstanding invoices, including but not limited to any and all tax credits which were already identified by TCG but not yet invoiced to Client, tax credits processed by TCG not yet claimed or utilized by Client that were accruing at the time of termination. The rate defined in Article 5.1. shall increase by a rate of 10% on all remaining tax credits invoiced if Client fails to submit data requested by TCG within (15) days of request to finalize remaining tax credits.
15.7. Sale, Closing, Dissolution, Liquidation. (a) During the initial term or renewal term of this Agreement, Client shall provide written notice to TCG of any sale,voluntary or involuntary closing, dissolution, liquidation, or transfer of: (1 all or substantially all of Client’s assets; or 2) more than 40% of the total ownership/stock of Client’s company. (b) Client shall provide notice to TCG at least (3) months prior to the closing of such sale, transfer, liquidation or dissolution and shall identify the person or entity acquiring Client’s company assets and/or stock. (c) events described in this Article 15.7. shall be deemed an Early Termination of the Agreement and client shall pay TCG the Early Termination Fee amount defined in Article 15.5. for each month remaining under the existing term of the Agreement.
16. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but which, taken together, shall constitute one Agreement. A facsimile signature shall be deemed an original signature for all purposes of this Agreement.
17. LAW AND JURISDICTION.
This Agreement shall be governed by and construed in accordance with the laws of the state of Iowa. TCG and Client agree that exclusive jurisdiction and venue over any dispute arising out of this Agreement shall vest in the Iowa district court in and for Dubuque county and/or the U.S. District court for the northern district of Iowa. Client waives any and all of its rights to interpose any claims, deductions, set offs or counterclaims of any nature in any dispute with respect to the Agreement. Any claims, deductions, set offs or counterclaims must be brought as a separate action subject to this Article.
18. ATTORNEY FEES.
In the event either party commences to retain legal counsel or commences a legal proceeding to enforce any of the terms of this Agreement, the prevailing party in such action shall have the right to recover all reasonable attorneys’ fees and costs from the opposing party. The non-prevailing party in any dispute under this Agreement agrees to pay all costs and expenses, including expert witness fees, attorneys’ fees and collection costs incurred by the prevailing party in resolving such dispute. The Prevailing party shall be defined as the party obtaining at least half of the monetary relief sought, whether by compromise prior to or after commencing a legal proceeding, settlement or judgment. In the event a judgement is rendered the non prevailing party agrees to pay any post judgement costs and expenses, including investigators fee’s, attorneys’ fees and collection costs incurred by the prevailing party to enforce the terms of said judgement.
19. INDEMNIFICATION.
Client shall indemnify, save, and hold harmless TCG and its officers, agents, and employees from and against any and all claims, causes of action, suits, or judgments, including expenses incurred therewith, brought by a third party and arising, directly or indirectly, out of: (a) its performance of or failure to perform, the services, obligations and/or duties described in this Agreement; (b) the conduct, actions, or omissions of its employees, contractors, shareholders, officers, directors, agents, or representatives; or (c) its breach of any of the terms of this Agreement. The provisions contained in this Article 19. shall survive the termination of this Agreement and shall continue to bind the parties.
20. FORCE MAJUERE.
Neither party shall be liable for or deemed to be in default for any delay or failure to perform any act under this Agreement (other than the payment of money) resulting, directly or indirectly, from acts of god, civil, or military authority, acts of public enemy, war, accidents, fires, explosions, earthquake, flood, failure of transportation, strikes or other work stoppages by either party’s employees, or any other cause beyond the reasonable control of such party.
21. AMENDMENT.
This Agreement may not be orally changed or modified in any way. All changes or modifications to this Agreement shall be in writing by both parties proper and duly authorized officers and only by signing and notarizing an “Amendment to Agreement for Tax Credit Services”
22. WAIVER.
No delay or failure to exercise any remedy or right occurring upon any breach or default shall be construed as a waiver of such remedy or right, nor shall it affect any subsequent default of a same or different nature.
23. ASSIGNMENT.
Neither party shall assign this Agreement or any of their rights or obligations hereunder without written consent of the other, which consent shall not be unreasonably withheld or delayed.
24. SUCCESSORS AND ASSIGNS.
All of the provisions contained herein shall be binding upon and inure to the benefit of the respective successors, assigns, heirs, estates, executors and administrators of the parties hereto to the same extent as if assigns, heirs, estates, executors and administrators of the parties hereto were in each case named as a party to this Agreement.
25. SEVERABILITY.
Should any part of this Agreement for any reason be declared invalid, such decision shall not affect the validity of any remaining portion, which remaining portion shall remain in force and effect as if this Agreement had been executed with the invalid parts thereof eliminated.
26. FURTHER ACTIONS.
At any time and from time to time, each party agrees, without further consideration, to take such actions and to execute and deliver such documents as may be necessary to effectuate purposes of this Agreement.
27. HEADINGS.
The headings contained in this Agreement are inserted only as a matter of convenience and reference, and in no way define, limit, or describe the scope of this Agreement, nor the intent of any provision thereof.
28. NO PARTNERSHIP JOINT VENTURE.
Nothing contained in this Agreement shall be deemed or construed as creating a partnership or joint venture between TCG and Client, nor cause TCG to be responsible in any way for debts or obligations of Client.
29. CONFIDENTIALITY.
The Parties acknowledge that the existence and the terms of this Agreement and any oral or written information exchanged between the Parties in connection with the preparation and performance this Agreement are regarded as confidential information. Each Party shall maintain confidentiality of all such confidential information, and without obtaining the written consent of the other Party, it shall not disclose any relevant confidential information to any third parties with the exception of TCG working with third parties to process or procure tax credits for Client. Disclosure of any confidential information by the staff members or agencies hired by any Party shall be deemed disclosure of such confidential information by such Party, which Party shall be held liable for breach of this Agreement.
30. WAIVER OF A TRIAL BY JURY.
It is mutually agreed by and between Company and Client that the respective parties hereto shall and hereby do waive trial by jury in any action, proceeding, or counterclaim brought by either of the parties hereto against the other on any matters whatsoever arising out of or in any way connected with this agreement, the relationship of Company and Client, and/or any claim for injury or damage, and any other statutory remedy
31. SURVIVAL.
The following will survive the expiration or termination of this contract for any reason and shall remain in effect and bind the parties: Article 5.2, Article 14,17,18,19.
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