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 developed and sent to Client upon request of Client Branded Web Portal 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 executed IRS Form 2848 within 5 days of request by TCG.

“Hire Report or Payroll Report,” is defined as a report the Client is to provide TCG detailing all hires and rehires made by the Client each month and annually. Report shall be in excel file format and include (i) entire social security number for each new hire or rehire. (ii) hire date, application date or start date for each hire or rehire (iii) first name and last name of hire or rehire. (iv) gross wages and hours paid to all hires for time period requested. (v) address, city, state and zip code.

“Hire” is defined as an individual who completes for Client any of the following forms for the Client (i) IRS Form W-4, (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 Submission Report,” is defined as the report TCG generates annually after receiving the Payroll Report/Hire 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 upon receipt of all certifications, determinations and data detailing all employees who received a Tax Credit Certification, worked the minimum retention period and the amount of the tax credit entitlements earned by the Client for a given employee and total amount of tax credits processed and calculated by TCG for that year.

“Tax Credit Screening Forms,” is defined as 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 the Account Service detailed in Article 6.

“ Account Manager “  is defined as any individual who assists or oversees the Account Maintenance of the Client

“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 State or federal government.

“Disaster Credit” is defined as any federal or State tax credit, incentive, or tax refund enacted as a result of a natural disaster, epidemic, or a result of state or federal state of emergency.

“Hiatus Period” is defined as a time period in which various tax credits and tax credit programs, which might otherwise benefit Client, may expire and must be renewed or extended by Congress or applicable state legislature(s). During such period states routinely continue to accept applications for tax credits and process tax credit certifications. Certifications are issued and released after the tax credit or program is reauthorized or extended,

12. STANDARD OF PERFORMANCE.

TCG cannot guarantee any results from performance of the services. TCG will utilize commercially reasonable 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 any of the following (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.  In the event the WOTC Program or any of the tax credits defined in Article 1 go into hiatus Client agrees for up to 12 month period to continue to submit all tax credit forms and information for any of the tax credits defined in Article 1. Hiatus shall be defined as period in which a tax credit program, incentive or credit expires and not has yet been reauthorized.

13. EXCLUSIVITY & HIATUS 

Client shall not be permitted to contract with any other party including the Client’s own company or subsidiaries 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. Should any tax credits or programs enter a Hiatus Period Client agrees to the following:  (a) submit all applicable forms and certifications required under this Agreement and as requested by TCG.  (b) In the event a tax credit or program remains in a hiatus period for (12) months or more, Client shall have no further obligation to submit information specific only to the tax credit or program in hiatus. (c) pay TCG, for all work performed on Client’s behalf to calculate and process tax credits in a hiatus period. Payment shall be made within (15) days upon receipt of invoice.  (d)  pay the full Account Service fee regardless of whether any tax credit or program exceeds the (12) month hiatus period.

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 and Right to Cure Breach. In the event either party materially violates any term or condition of this Agreement, the non-breaching party may give the breaching party (30) days written notice describing: (a) that a material breach of this Agreement has occurred providing the specific Article and section breached, (b) the nature of the breach, and (c) a remedy appropriate to cure each identified breach. If the identified breach is not cured within (30) days, the non-breaching party may, at its option, terminate this Agreement by giving the breaching party a written Notice of Termination as specified in Article 15.2.  In the event the Client is the breaching party and fails to cure the breach within (30) days TCG upon providing Notice of Termination as specified in Article 15.2., shall be entitled to Early Termination Damages against the Client in such amount as calculated under Article 15.4. Upon termination of the Agreement Client agrees and waives any and all of its rights to interpose any claims, deductions, set offs, counterclaims or relief of any breaches whether such claims are bought as a separate action  separate action relating to this Agreement whereby Client failed to provide TCG a Notice and Right to Cure said Breach per this Article 15.1. In the event Notice and Right to Cure Breach does not provide the breaching party with the required information detailed in this Article 15.1., nor provide a cure specific to each identified breach the breaching party agrees within (5) days of receipt of notice submit in writing to the non-breaching party notice requirements as described in section (a), (b), or (c) that were not provided.

15.2. Notice of Termination. A Notice of Termination must be sent by email with read receipt requested or in writing by registered or certified mail, postage and charges prepaid, and return receipt requested. If TCG issues a Notice of Termination pursuant to the provisions of Article 15.1, TCG shall be entitled to Early Termination Damages as these damages are agreed upon and defined under Article 15.4. If TCG issues a Notice of Termination pursuant to the provisions of Article 15.3, TCG shall be entitled to Early Termination Damages as these damages are agreed upon and defined under Article 15.4.

15.3. Sale, Closing, Dissolution, Liquidation. (a)  During any term of this Agreement, if Client sale of business , is acquired, merges, transfers, closes, dissolves, or liquidates: (1) all or substantially all of Client’s assets; or (2) more than 40% of the total ownership of Client’s business such act shall constitute a material breach of the Agreement and serve as grounds for TCG, at its discretion, to forego the provisions of Article 15.1 and immediately issue a Notice of Termination against Client and recover Early Termination Damages as defined in Article 15.4. Notwithstanding the foregoing, TCG and Client may agree in writing to forego any claims for Early Termination.

15.4. Early Termination Damages. In the event this Agreement is terminated as provided for in Articles 15.1 and/or 15.3, TCG shall be entitled to recover Early Termination Damages in the amount of $800.00 for each month remaining under the then existing Term of the Agreement. These damages are separate from Liquidated damages defined in Article 15.10.

15.5. Early Termination Agreements. Termination of this Agreement during the Agreement’s original Term or any subsequent Renewal Term for any reason other than those situations described in Articles 15.1 and 15.3 above requires that the parties sign and execute an Early Termination Agreement or comply with paragraph 15.7 below.

15.6. Confidential Information. At the termination of this Agreement, for any reason, 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 this Agreement concerning confidential information shall survive any termination of this Agreement.

15.7. Non-Disparagement and Non-Interference. The parties agree that they shall not, and shall not cause, in any communications with the press or other media, or any customer, client or supplier of the parties, or any of the parties’ affiliates, criticize, ridicule, or make any statement which disparages or is derogatory, of the other or any of their respective directors, officers, or employees—whether orally, electronically, or in writing. The parties further agree that they shall not, directly or indirectly, take or cause to be taken any action(s) which may interfere with the business operations of the parties or the exercise of their rights hereunder. This Paragraph shall not be construed to prohibit any claims relating to an alleged breach of, or performance of any obligations under, this Agreement or the agreements contemplated herein insofar as such claims are necessary to prove such claims in an applicable lawsuit.

15.8. Renewal Term. This Agreement shall automatically renew for another (5) year term (a “Renewal Term”) and shall continue to renew in this matter in perpetuity unless and until either party provides a Notice of Non-Renewal by sending such notice by registered or certified mail, postage and charges prepaid, and return receipt requested. A Notice of Non-Renewal shall be considered timely mailed with return receipt requested and post-marked at least (12) months prior to the expiration of the then existing Term. Such a timely Notice of Non-Renewal shall not constitute an Early Termination of the Agreement, Paragraphs 15.1 through 15.4 notwithstanding. Upon delivery of such a timely Notice of Non-Renewal, the Agreement shall cease to automatically renew and the Agreement will terminate upon the expiration of the then-applicable Term or Renewal Term.

15.9. Remaining Compensation Owed at Termination. Upon the termination of this Agreement, TCG shall be entitled to compensation in full for all services performed and for payment of all outstanding invoices, including but not limited to, any and all tax credits which were already identified by TCG but not yet invoiced to Client, or tax credits that were accruing at the time of termination and monthly account fee’s Client agrees upon termination of this Agreement to provide within 15 days of request (a) any notices, certifications, or requests issued by the states during the time period in TCG was providing services or the time period TCG was authorized agent on IRS Form 2848 (b) any payroll data requested by TCG to finalize and calculate remaining tax credits. (c) In order for TCG to access and receive any remaining determinations and certifications Client agrees not to revoke the IRS 2848 listing TCG as authorized representative. (d) Client shall provide TCG within (15) days of request a limited POA in order for TCG to receive any remaining determinations.   If Client fails to provide within 15 days any of the data requested by TCG to finalize and calculate the remaining tax credits TCG shall be entitled to Liquidated Damages as defined in Article 15.10.

15.10. Liquidated Damages.  The parties acknowledge and agree in the event Client breaches the terms defined in Article 15.9. would result in irreparable and immeasurable damage to TCG. The Parties agree it would be extremely difficult or impossible to determine the actual damages, which TCG will sustain in the event Client breaches the terms of Article 15.9. Client agrees the amount calculated hereunder constitute a reasonable approximation of damages that TCG would incur from Client breaching any provisions of Articles 15.9.  Client agrees TCG shall be entitled to recover from Client Liquidated Damages in the amount of $45,000.00. The amount calculated and estimated in this Article is based upon (i) the industry the Client operates in, (ii) the number of hires processed by Client annually (iii) rate charged in Article 5.1.The Liquidated damages defined herein are separate and do not include any additional Early Termination Damages TCG maybe entitled to as defined in Article 15.4.  Damages defined herein are specific to remaining fee’s and compensation owed to TCG for services after Termination of 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, 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 to this Article 17 and Article 15.

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 related costs and fee’s 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 money judgment is awarded the non-prevailing party shall pay all post judgment collection costs, legal fee’s incurred by the prevailing party to effecuate and collect on judgement after such judgment is awarded.

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 MAJEURE.

Except with respect to payment obligations under this Agreement, no Party shall be liable for, or be considered in breach of this Agreement due to, any failure to perform its obligations under this Agreement as a result of any act of God, acts of terrorism, voluntary or involuntary compliance with any regulation, law or order of any government, act of war (whether war be declared or not), failure or default of public utilities or common carriers, destruction of production facilities or materials by fire, earthquake, storm or like catastrophe, or any other cause, whether similar or dissimilar to any of the foregoing, which could not have been prevented by such Party with reasonable care (each, a “Force Majeure Event”). The Party affected by such Force Majeure Event shall notify the other Party of the anticipated duration of such Event, any actions being taken to avoid or minimize its effects after such occurrence, and the Party shall take reasonable efforts to remove or remedy the condition(s) hindering performance under the Agreement. The payment of any previous invoice or payment obligation due and owing shall in no event be delayed or excused except by written agreement between the Parties.

21. AMENDMENT OR MODIFICATION.

This Agreement may not be orally changed or modified in any way.  All changes or modifications to this Agreement shall only be valid by completing an “Amendment to Agreement for Tax Credit Services” of which  (i) memorializes and describes any sections of the Agreement for Tax Credit Services the parties Agree to modify, (ii) the Parties proper and duly authorized officers sign and execute,.  (iii) must be notarized by a duly appointed Notary.

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 this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by Client in whole or in part (whether by operation of law or otherwise), consent of TCG and any attempt to make any such assignment without such consent as detailed below shall be null and void. Client agrees to submit to TCG any requests for Consent to Assign Agreement in writing via USPS Certified mail with return receipt requested. Consent to Assign Agreement shall provide the following:  (i) legal entity name of the party Client is requesting Assignment to (ii) address, phone number and contact information of entity. (iii) Clients relationship with entity requesting Assignment to.  Consent shall only be valid upon TCG signing and notarizing Consent to Assign Agreement. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.

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 14,15.6.15.10.,17,18,19