This Client Services Agreement (the “Agreement”) is dated ___{todaysDate}___, (the “Effective Date”) by and between Ultimate ERC LLC, a Florida LLC (hereafter “Ultimate ERC”), and ___{legalName}____, (“Client”) a(n) Corporation Partnership LLC Other:_______________.
Client and Ultimate ERC are each individually referred to herein as a “Party” and collectively as the “Parties.” SCOPE OF ENGAGEMENT; SERVICES. Client wishes to engage Ultimate ERC to perform the following services and Ultimate ERC agrees to use commercially reasonable efforts perform the following services (the “Services”) pursuant to the terms of this Agreement.
1.Identify and determine eligibility for any Employee Retention Tax Credits (“ERTC”) provided for in the Coronavirus Aid Relief and Economic Stimulus Act (the “CARES Act”) or any other COVID-19-related legislation which may be available to Client (collectively the “Credits”);
2.Gather applicable client data (i.e. payroll data, employer healthcare cost information, etc.) from Client required to calculate Credits;
3.Calculate Credits for Client;
4.Prepare and deliver a Tax Credit Package to Client that includes an eligibility analysis, applicable supporting schedules, and a Credit calculation based on applicable law (the “Tax Credit Package”); and
5.Provide internal, external and IRS audit support (as required).
Notwithstanding the foregoing, should any other COVID-19 related credits or incentives become available to Client during the Term of this Agreement, Ultimate ERC shall have the right to perform similar services pursuant to this Agreement unless Client indicates otherwise in writing.
TERM. The term of this Agreement is 1 year from the Effective Date (the “Term”) and will auto renew for 1 additional year, unless terminated by written notice by either party within 90 days of the auto renewal date. Audit Support (defined below) shall survive the term of this agreement.
TERMINATION. Either Party may terminate this Agreement for convenience prior to the expiration of the Term by providing written notice to the non-terminating Party. Termination shall occur fifteen (15) business days after the written notice is served. Upon termination of this Agreement, Client shall be obligated to immediately pay all open invoices for Services rendered as of the date of termination and will pay future invoices for any work in progress upon receipt of an invoice for such Services.
FUNDING ADVANCES. As part of the value added services provided, Utlimate ERC agrees to provide its best effort to assist the Client in sourcing a Funding Advance, which is a source of expedited funding provided to the Client prior to receipt of the calculated Employee Retention Credit, through multiple lending sources. Funding Advances are subject to approval, interest, underwriting, creditworthiness and/or other restrictions, and are not guaranteed. If a Funding Advance is procured, Client agrees that the calculated amount of funds to which they are entitled shall be held as security against the Funding Advance, and said funds may be redirected by the IRS to a lockbox, wherein the funds are made payable to Ultimate ERC (or in some cases, to the Lender), who shall then disburse the funds to Client after satisfying the lending terms of any Funding Advance and this agreement.
FEES. Upon the receipt of the Tax Credit Package, Client has the obligation to pay Ultimate ERC a 30% contingency fee in accordance with the terms of this Agreement based on the amount of Credits calculated for Client and reflected in the Tax Credit Package (the “Fee”). Client’s obligation to pay the Fee is not contingent upon Client’s ultimate use of the Credits. This section shall survive the termination of this Agreement with respect to any work performed prior to termination of this Agreement.
INVOICES. Client’s obligation to pay the Fee is triggered upon delivery of the Tax Credit Package to Client which will include an invoice established by the anticipated Tax Credit due to Client. Client is required to remit the Fee upon receipt of each of the corresponding Tax Credit funds from the U.S. Treasury. Upon receipt of said funds, Client shall remit payment of the fee within 10 days. Notwithstanding the foregoing, payment of the Fee is not contingent upon whether the Client ultimately utilizes the Credits calculated by Ultimate ERC. Utilization of the Credits is the sole responsibility of the Client. Fees not received within Sixty (60) days of receipt of Tax Credit funds will bear interest at the rate of 1.5% per month. The Fees do not include applicable taxes and are in US dollars. This section shall survive the Term of the Agreement.
POWER OF ATTORNEY AND DECLARATION OF REPRESENTATIVE. For the express purposes of representation before the IRS and to expedite processing and tracking of any Tax Credits due, the Client shall provide to Ultimate ERC a copy of IRS Form 2848 (attached to this agreement) completed and signed by an authorized officer of the Client company. Client understands that so doing authorizes Kevin Marshall, CPA, a strategic partner of Ultimate ERC, as a Declared Representative, and does NOT authorize them to endorse or otherwise negotiate any check (including directing or accepting payment by any means, electronic or otherwise, into an account owned or controlled by the representative or any firm or other entity with whom the representative is associated) issued by the government in respect of a federal tax liability.
REFUND; AUDIT NOTICE. Ultimate ERC will refund any portion of the Fee attributable to Credits disallowed by the appropriate taxing authority, provided, however, only if Ultimate ERC is given reasonable notice of any audit, challenge to the Credits, or other proceeding for review of the Credits and given the opportunity to provide audit support regarding the Client’s eligibility for, the validity of and/or amount of the Credits claimed by Client. Such audit support shall be provided by Ultimate ERC, LLC.
RELIANCE ON CLIENT'S RECORDS & ASSURANCE. Ultimate ERC must rely on Client's accounting records to prepare the tax credit analysis. We will accept the client's records at face value, and that their accuracy is the clients' responsibility. We are not obligated to nor will we detect fraud or malfeasance. The tax credit analysis is based on quarterly calculations so it is the client's responsibility to disclose any adjustments made during the year that would be applicable to a particular quarter.
ACCESS; CONFIDENTIALITY. For the Term of this Agreement, Client grants Ultimate ERC reasonable limited access to any information and data necessary to perform the Services (the “Client Data”). "Confidential Information" means a disclosing Party's non-public written information, in any form, and all copies, summaries and extracts, which are identified as confidential at the time of disclosure, and specifically includes Client Data. Confidential Information does not include information that: (i) is or becomes generally publicly available at the time of disclosure or subsequently through no fault of recipient Party; (ii) was known to recipient Party, free of any confidentiality obligations, before its disclosure by disclosing Party; (iii) becomes known to recipient Party, free of any confidentiality obligations, from a source other than disclosing Party; or (iv) is independently developed by recipient Party without use of the Confidential Information. A recipient Party that receives Confidential Information from a disclosing Party will: (i) use Confidential Information only as necessary to perform its obligations under this Agreement, (ii) handle Confidential Information with the same level of care that it holds its own Confidential Information (but in any event with no less than a reasonable level of care), (iii) disclose Confidential Information to only those third parties (accountants, tax advisors, etc.) who provide services to the Recipient and have previously agreed in writing to protect the Confidential Information to the same extent as required in this Agreement, and (iv) either promptly deliver or promptly destroy (and certify the destruction to the disclosing Party) all of the disclosing Party's Confidential Information and copies in the recipient Party's possession at the disclosing Party's request or at the expiration or termination of this Agreement (except Ultimate ERC may maintain all Confidential Information that may be reasonably needed in the event of an audit). Except as may be required by court order or law, a recipient Party's obligations regarding Confidential Information will remain in full force and effect.
IRS GUIDANCE DISCLAIMER. Ultimate ERC is relying on certain US federal government legislation, such as the CARES Act, which is subject to interpretation. Ultimate ERC’s findings are subject to amendment pending future IRS guidance.
INDEMNIFICATION BY CLIENT AND Ultimate ERC. Client agrees to indemnify, defend and hold harmless Ultimate ERC, including its directors, officers, employees, and agents from and against all losses, suits, claims, damages (consequential or otherwise), demands, causes of action, liabilities, fines, penalties, costs or expenses of whatever kind or nature arising from errors or omissions in the information Client provides to Ultimate ERC. Ultimate ERC agrees to indemnify, defend and hold harmless Client, including its directors, officers, employees, and agents from and against all losses, suits, claims, damages (consequential or otherwise), demands, causes of action, liabilities, fines, penalties, costs or expenses of whatever kind or nature arising from an allegation that the Services infringe the copyright or patent of a third party or from Ultimate ERC’s intentional misconduct. Notwithstanding the foregoing, a Party’s maximum amounts owed for indemnification under this Agreement shall not exceed the amount of the Fee actually paid by Client under this Agreement.
LIMITATION OF LIABILITY. Neither party shall be liable to the other party for any consequential damages (excluding refunds as described above), including any loss of business profits, business interruption or special damages, incidental, exemplary, punitive or indirect damages arising from or relating to this agreement, regardless of how caused or the theory of liability pursued. This limitation shall apply even if such party has been advised of or is aware of the possibility of such damages. Notwithstanding the foregoing and with the exception of fees due under this agreement, neither party shall be liable to the other party for any amounts in excess of the fees actually paid under this agreement.
NOTICES. Any notice required hereunder shall be deemed to have been given upon delivery or deposit with a nationally-recognized courier or sent by registered or certified U.S. mail, return receipt requested, postage prepaid, to the other Party at the address set forth at the end of this Agreement.
AMENDMENT. This Agreement may be amended in a writing signed by both Parties.
GOVERNING LAW. This Agreement constitutes the entire understanding between the Parties regarding the Services and shall be governed and construed in accordance with the laws of Utah. By their signatures below, the Parties enter this Agreement as of the Effective Date.