10. BEST EFFORTS & LIMITATIONS.
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. In the event Client fails to
provide all available information, forms, and documents to TCG, TCG bears no responsible 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. TCG offers a secured website for processing online claims. TCG takes all necessary measures to
safeguard online information.
11. EXCLUSIVITY.
Client shall not be permitted to contract with any other party for the provision of the Services 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.
12. NON-DISCLOSURE & COVENANTS.
12.1. Confidential Information, Defined. For the purpose of this Article 12 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, controls, programs, management and nancial 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
TCG shall not be liable to Client in the event online information is accessed by a third party
through no fault of TCG.
12.2. 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.
12.3. Injunctive Relief.
The parties acknowledge any disclosure of Confidential Information or breach of any
part of this Article 12 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 this
Article 12. 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.
13.TERMINATION.
13.1. Notice of Termination. A Notice of Termination must be sent by email with read receipt requested or in writing and sent by registered or certified mail, postage and charges prepaid, and return receipt. Notice must
be sent 6 months prior to the expiration of the then current Term.
13.2. 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 $800.00 for each month remaining under
the existing term of the Agreement.
13.3. 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 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. (d) In the
event Client is the breaching party and fails to cure or respond to breach within (30) days, Client shall pay the
Early Termination fee as dened in Article 13.2. upon TCG providing Notice of Termination and invoice to
Client.
13.4. 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. The provisions of Article 12 shall survive any
termination of this Agreement. Any sign on bonus amounts paid or fee’s waived by TCG for Client in this Agreement for Tax Credit Services shall be reimbursed to TCG within (10) days upon any of the following
occurrences by Client: Termination of Agreement, Clients Early Termination of Agreement, Sales of Business
or failure to Cure Breach within (20) days.
13.5. Renewal Term. This Agreement shall automatically renew for a term of 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 13.1.
13.6. 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
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tax credits which were already identied by TCG but not yet invoiced to Client, or tax credits that were
accruing at the time of termination.
13.7. Sale of Business. During the initial term or renewal term of this Agreement, Client shall provide written
notice to TCG of any sale, voluntary or involuntary dissolution, liquidation, or transfer of: 1) all or substantially
all of Client’s assets; or 2) more than 40% of the total ownership of Client’s company. Such written notice shall
be given 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. Client’s sale of business,
voluntary or involuntary dissolution, transfer or liquidation during the Initial Term or Renewal Term of this
Agreement shall be deemed an Early Termination of the Agreement as dened in Article 13.2. The Early
Termination Fee shall be invoiced to Client.
14.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. TCG shall indemnify, save, and hold harmless the Client 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, ocers, director, agents, or representatives; or (c) its
breach of any of the terms of this Agreement. In the event any such claims are made or suits led, the party
subject to suit shall give the other prompt written notice thereof, and the other party shall have the right to
defend or settle the same to the extent of its interest hereunder. The provisions contained in this Article 14
shall survive the termination of this Agreement and shall continue to bind the parties.
15. MISCELLANEOUS.
15.1. Force Majeure. 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, res, explosions, earthquake,
ood, failure of transportation, strikes or other work stoppages by either party’s employees, or any other cause beyond the reasonable control of such party.
15.2. Entire Agreement. This Agreement sets forth the entire understanding between the parties hereto
and supersedes all other prior Agreements between the parties. Each party to this Agreement acknowledges
that no representations, inducements, promises or Agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, that are not embodied in this Agreement, and that no other
Agreement, statement, or promise not contained in this Agreement shall be valid or binding as between TCG
and Client.
15.3. Amendment or Modication. This Agreement may not be orally changed or modied. All changes or modications to this Agreement shall be in writing by both parties proper and duly authorized officers and
15.4. 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.
15.5. 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.
15.6. Successors and Assigns. All of the provisions contained herein shall be binding upon and inure to the benet 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.
15.7. Severability. Should any part of this Agreement for any reason be declared invalid, such decision shall
not aect 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.
15.8. 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 eectuate purposes of
this Agreement.
15.9. Headings. The headings contained in this Agreement are inserted only as a matter of convenience and
reference, and in no way dene, limit, or describe the scope of this Agreement, nor the intent of any
provision thereof.
15.10. 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.
15.11. 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.
15.12. 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, setoffs
or counterclaims of any nature in any dispute with respect to the Agreement. Any claims, deductions, setoffs
or counterclaims must be brought as a separate action subject this Article 15.12
15.13. Attorney Fees. In the event either party 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 shall pay all costs and expenses, including expert witness fees and attorneys’ fees, collection costs incurred by the prevailing party in resolving such dispute. This Section shall survive the termination of this Agreement for any
reason.
15.14. Waiver of Trial by Jury. It is mutually agreed by and between TCG 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 TCG and Client, TCG provided Services, and/or any claim or injury or damage, and any other statutory remedy.
15.15. 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.
15.16 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 6, Article 12, Article 15.12 Article 15.13, Article 15.15