1.1 The Client Engagement Letter for Tax Preparation Services ( "Client Engagement Letter" ) and these terms and conditions for the Services (these “Terms and Conditions”) (collectively, this "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and Conditions and the Client Engagement Letter, these Terms and Conditions shall govern unless the Client Engagement Letter expressly states that the terms and conditions of the Client Engagement Letter shall control.
(a) (“Client Introductory Meeting”) means a teleconference between The BCT sales team and representatives of the Client to determine the Client’s initial qualification and estimated ERC amount.
(b) (“Client Onboarding Call”) means a teleconference between the Client Relationship Manager and representatives of the Client to review Client Data needed to provide the Services.
(c) (“Client Breach”) means the Client opts not to file an amended 941-X, The BCT terminates the Agreement, or the Client materially breaches its obligations under the Agreement.
(d) (“ERC”) means the Employee Retention Credit which is a refundable tax credit designed for businesses who continued paying employees while experiencing a full or partial suspension of operations due to COVID-19 government orders or had significant declines in gross receipts from March 13, 2020 to December 31, 2021. Eligible taxpayers can claim the ERC on an original or amended employment tax return for a period within those dates.
(e) (“Funded ERC Payment”) means either (i) the receipt of an ERC refund check from the U.S Treasury, or (ii) an offset of current or future payroll tax liabilities on either a Form 941 or Form 941-X, or (iii) an issuance of credits and transfer of those credits to a different tax period for which outstanding tax liability exists.
(f) (“Onboarding Packet”) means a document summarizing The BCT’s process for providing the Services. This document is for informational purposes only and not part of the Agreement.
(g) (“Questionnaire”) means a document used to screen each Client for potential eligibility for ERC. This initial ERC qualification analysis is not final binding or conclusive. This document is for informational purposes only and not part of the Agreement.
Client agrees and understands that The BCT relies on Client to provide accurate and complete information regarding Client’s eligibility for ERC including but not limited to answers to questions, documents, attestations, and records (collectively “Client Data”). Client understands and agrees that The BCT or The BCT Representatives cannot provide the Services without first receiving accurate and complete information from the Client. The BCT shall provide to Client the following services (the "Services").
2.1 Calculate wage attribution, as defined in section 3121(a) of the Internal Revenue Code (“Code”) and compensation as defined in section 3231(e) of the Code and as otherwise required by statute or regulation (collectively “Qualified Wages”).
2.2 Create attribution schedules detailing wage allocation to PPP loan forgiveness and wage allocation to ERC; and
2.3 Prepare and help Client file amended 941-X quarterly returns, together with other document(s) needed to claim the ERC for calendar years 2020 and 2021, with the Internal Revenue Service (“IRS”).
2.4 If client utilizes a professional employer organization (PEO), a certified professional employer organization (CPEO), or Client wishes to utilize their own payroll provider to file, then The BCT will prepare all calculations and documents to assist the third party with the filing process.
2.5 Client agrees once all 941-X quarterly returns are filed with the IRS. The BCT has performed all the Services.
2.6 If Client is audited by the IRS for tax years, 2020 or 2021, The BCT agrees to provide to Client upon request and at no additional fee: (a) all materials used to calculate Client s ERC; (b) a written explanation of Client’s eligibility for the ERC; (c) a written explanation of the methods used to calculate Client’s ERC; (d) a written explanation describing how Client Data was obtained and used to calculate Client’s ERC (collectively “Audit Support Services”). If after The BCT provides Audit Support Services to the Client, the IRS materially disagrees with The BTC s calculations and methods relied on for Client’s ERC, then The BTC will refund any portion of the Client Contingency Fee (as defined in the Fee Schedule) attributable to Client’s ERC disallowed by the IRS or any Early Termination Fee (the “Client Refund”). The BCT shall pay the Client Refund thirty (30) days after the IRS audit is complete.
2.7 The BCT shall not be obligated to: (a) take any actions other than those specifically stated; (b) incur any additional costs; (c) perform any research or examine Client s records with any degree of particularity; (d) represent Client before the IRS; or, (e) engage on any matter outside the scope of the Services.
3.1 Maintain a valid PTIN with the IRS, which will be included in the Paid Preparer section on the amended 941-X.
3.2 Designate in the Client Engagement Letter an employees or contractor that it determines, in its sole discretion, to be capable of filling the following position: a primary contact to act as its authorized representative with respect to all matters pertaining to this Agreement ("Client Relationship Manager ").
3.3 Make no changes in Client Relationship Manager except:
(a) Following reasonable notice to Client.
(b) Upon the resignation, termination, death or disability of an existing Client Relationship Manager.
(c) At the reasonable request of Client, in which case The BCT shall use reasonable efforts to appoint a replacement at the earliest time it determines to be commercially viable.
3.4 Assign to perform the Services a number of employees, contractors, subcontractors, sublicensees, joint partners, or agents that it deems sufficient in its sole discretion to perform the Services ("The BCT Representatives").
4.1 Provide complete and accurate payroll reports as requested by The BCT exported from Client’s payroll provider (in CSV Format) from January 1, 2020 through December 31, 2021. The payroll reports must be broken down per employee by each Quarter, or if requested by The BCT, the payroll reports must be provided in more detailed and granular pay period level format.
4.2 Provide complete and accurate Client Quarterly 941 tax filings for the second quarter of 2020 ending June 30, 2020 through the fourth quarter of 2021 ending December 31, 2021, as requested by The BCT.
4.3 Complete the client questionnaire, provide revenue reports including a complete revenue calculation spreadsheet if requested, provide PPP Loan Information if a loan was received (in order to show a covered period), provide amount and date of any funds received from Restaurant Revitalization Fund.
4.4 Designate in the Client Engagement Letter one of its employees or agents to serve as its primary contact with respect to this Agreement and to act as its authorized representative with respect to matters pertaining to this Agreement (the "Client Representative"), with such designation to remain in force unless and until a successor Client Representative is appointed. However, The BCT shall rely on Client Data provided to it by any of Client’s employees, contractors, representatives, or agents
4.5 Require that the Client Representative respond promptly to any reasonable requests from The BCT for instructions, information, or approvals required by The BCT to provide the Services.
4.6 Cooperate with The BCT in its performance of the Services and provide access to Client s financial records, employees, contractors, and as required to enable The BCT to provide the Services.
4.7 Take all steps necessary, including obtaining any required consents, to prevent Client-caused delays in The BCT’s provision of the Services.
4.8 Provide the Client Data in a timely and workmanlike manner, and as a result, Client represents and warrants that all Client Data provided pursuant to this Agreement is accurate, true, and correct to the best of Client’s knowledge.
4.9 Complete and sign IRS Form 8821 designating The BCT as authorized to inspect and/or receive confidential tax information related to the Services. Client understands and agrees that it shall not revoke this designation during the Term.
The BCT or The BCT Representatives shall be considered and will be listed as a federal tax return preparer (“Paid Preparer”) for Client’s amended 941 filings, and, accordingly, The BCT or The BCT Representatives shall not serve as Client’s representative before the IRS or any other governmental authority. The BCT or The BCT Representatives does not possess legal authority to act on the Client’s behalf nor can The BCT legally bind the Client by acting on its behalf. The BCT or The BCT Representatives shall not, on behalf of the Client, practice before the IRS, the Department of Treasury, or any administrative tribunal, court, mediator, arbitrator, investigation, adversarial hearing, or other adjudicative proceeding.
6.1 In consideration of the provision of the Services by The BCT and the rights granted to Client under this Agreement, Client shall pay the fees set forth in the Client Engagement Letter. Payment to The BCT of such fees and the reimbursement of expenses pursuant to this Section 6 shall constitute payment in full for the performance of the Services. Unless otherwise provided in the Client Engagement Letter, Client shall pay all invoiced amounts due to The BCT within 30 days from the date of The BCT s invoice. Customer shall make all payments hereunder in US dollars by ACH or as instructed on the invoice.
6.2 Client shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Client hereunder; and to the extent The BCT is required to pay any such sales, use, excise, or other taxes or other duties or charges, Client shall reimburse The BCT in connection with its payment of fees and expenses as set forth in this Section 6. Notwithstanding the previous sentence, in no event shall Client pay or be responsible for any taxes imposed on, or with respect to, The BCT s income, revenues, gross receipts, personnel, or real or personal property or other assets.
6.3 Except for invoiced payments that the Client has successfully disputed, all late payments shall bear interest at the higher of (a) the rate of 0.667% per month or (b) the highest rate permissible under Ohio law, calculated daily and compounded monthly on the basis of a 365-day year. Client shall also reimburse The BCT for all reasonable costs incurred in collecting any overdue payments and related interest, including, without limitation, attorneys fees, legal costs, court costs, and collection agency fees. If a check tendered by Client is returned for insufficient funds, uncollected funds or stopped payment, Client shall pay The BCT a twenty-five-dollar ($25.00) service fee. In addition to all other remedies available under this Agreement or at law (which The BCT does not waive by the exercise of any rights hereunder), The BCT shall be entitled to suspend the provision of any Services if the Client fails to pay any fees when due hereunder and such failure continues for three (3) days following written notice thereof.
6.4 The Parties intend that the Early Termination Fee if any provided for in the Client Engagement Letter constitutes compensation, and not a penalty. The Parties acknowledge and agree that The BCT s harm caused by a Client Breach would be impossible or very difficult to accurately estimate, and that the Early Termination Fee is a reasonable estimate of the anticipated or actual harm that might arise from a Client Breach.
7.1 The BCT warrants that it shall perform the Services:
(a) In accordance with the terms and subject to the conditions set forth in the Agreement.
(b) Using personnel of commercially reasonable required skill, experience, and qualifications for the paid tax preparer industry.
(c) In a timely, workmanlike, and professional manner in accordance with generally recognized paid tax preparer industry standards for similar services.
7.2 The BCT s sole and exclusive liability and Client s sole and exclusive remedy for breach of this warranty shall be as follows:
(a) The BCT shall use reasonable commercial efforts to promptly cure any such breach; provided, that if The BCT cannot cure such breach within a reasonable time (but no more than thirty (30) days) after Client s written notice of such breach, Client may, at its option, terminate the Agreement by serving written notice of termination in accordance with Section 9.2.
(b) In the event the Agreement is terminated pursuant to Section 7.2(a) above, The BCT shall within thirty (30) days after the effective date of termination, refund to Client any fees paid by the Client as of the date of termination for the Services, less a deduction equal to the fees for Services up to and including the date of termination on a pro-rated basis.
(c) The foregoing remedy shall not be available unless Client provides written notice of such breach within thirty (30) days after delivery of such Services to Client.
7.3 No Consequential or Indirect Damages. In no event shall the BCT or any of its Representatives be liable to the Client or any third party for consequential, indirect, incidental, special, exemplary, punitive or enhanced damages or lost profits or revenues, or diminution in value, arising out of, relating to, or in connection with any breach of this agreement, regardless of (a) whether such damages were foreseeable, (b) whether or not client was advised of the possibility of such damages and (c) the legal or equitable theory (contract, tort, or otherwise) upon which the claim is based.
7.4 Maximum Liability. Except for obligations to make payment under this Agreement or liability for indemnification, or liability for breach of confidentiality, in no event shall either Party s aggregate liability arising out of or related to this Agreement, whether arising out of or related to breach of contract, tort, or otherwise exceed the total of the amounts paid and amounts accrued but not yet paid to the BCT pursuant to this agreement.
7.5 Disclaimer: Client understands and agrees:
(a) that neither The BCT nor any of its employees, shareholders, officers, contractors, sublicensees, or subcontractors, are attorneys, certified public accountants, or registered financial advisors;
(b) that The BCT has not provided and will not provide to Client legal advice;
(c) that Client has been encouraged to obtain any legal advice or opinion from an attorney or certified public accountants of Client’s choice;
(d) that Client has either obtained such advice and/or opinion as part of Client’s due diligence or has decided independently not to do so;
(e) the Services will not include verification or constitute a formal review or audit in accordance with any applicable accounting standards;
(f) that Client is not relying on any statement made to Client by The BCT regarding whether Client will qualify for an ERC or the amount of any such ERC;
(g) that it is not the responsibility of The BCT to perform any other Services other than those explicitly set forth in this Agreement;
(h) that The BCT engagement shall not constitute an audit, examination, review of any kind, compilation or compilation of agreed-upon procedures as defined by the AICPA, or any other type of financial statement reporting engagement that is subject to the rules of the AICPA, SEC or other state or national professional or regulatory body. The management of the Client is responsible for any and all financial information prepared during the course of this engagement. Accordingly, as part of this engagement, The BCT will not express an opinion or other form of assurance on the financial statements or financial components of the Client;
(i) that while The BCT is informed and believes that the ERC is a valid and viable program offered by the IRS see https://www.irs.gov/coronavirus/employee-retention-credit, The BCT makes no representations or warranties: (i) whether any person entity for whom The BCT prepares and/or submits an application for ERC will ultimately qualify for such credit, (ii) whether the IRS will or will not audit Client with respect to Client’s application for ERC, and (ii) whether, if audited, the IRS will or will not disallow all or part of the Client’s ERC (including possibly assessing interest and penalties on any disallowed amount (“IRS Assessment”). Client specifically and expressly waives any claim, demand or liability as against The BCT (and each of its shareholders, officers, employees, agents, contractors, subcontractors, and affiliates) regarding any IRS Assessment (except as set forth in Section 7.1 above, which shall be strictly construed).
(j) that the decision to file any amended 941-X quarterly return is solely the Client’s decision to make. However, the failure to file an amended 941-X quarterly return may trigger an Early Termination Fee payment to The BCT in accordance with the terms and conditions of this Agreement.
(k) THE BCT MAKES NO WARRANTIES EXCEPT FOR THAT PROVIDED IN SECTION 7.1, ABOVE. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED.
8.1 From time to time during the Term of this Agreement, either Party (as the "Disclosing Party") may disclose or make available to the other Party (as the "Receiving Party"), non-public, proprietary, financial, and confidential information of Disclosing Party, ("Confidential Information"); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party s breach of this Section 8; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party s possession prior to Disclosing Party s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party s Confidential Information with at least the same degree of care as the Receiving Party would use to protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party s Group who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.
8.2 If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party s sole cost and expense, a protective order or other remedy. For purposes of this Section 8 and Section 9.4 only, Receiving Party s Group shall mean the Receiving Party’s affiliates and its or their employees, officers, directors, shareholders, agents, independent contractors, The BCT’s, sublicensees, independent contractors, subcontractors, attorneys, accountants, and financial advisors.
9.1 This Agreement shall commence as of the Effective Date and shall continue thereafter until all Services are performed and all Fees have been paid, unless sooner terminated pursuant to Section 9.2 or Section 9.3.
9.2 Either Party may terminate this Agreement, effective upon written notice to the other Party (the "Defaulting Party"), if the Defaulting Party:
(a) Breaches this Agreement, and the Defaulting Party does not cure such breach within 30 days after receipt of written notice of such breach, or such breach is incapable of cure.
(b) Becomes insolvent or admits its inability to pay its debts generally as they become due.
(c) Becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven days or is not dismissed or vacated within 45 days after filing.
(c) Becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven days or is not dismissed or vacated within 45 days after filing.
(e) Makes a general assignment for the benefit of creditors.
(f) Has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
9.3 Notwithstanding anything to the contrary in Section 9.2(a), The BCT may terminate this Agreement immediately if:
(a) Client fails to pay any amount when due hereunder: (i) and such failure continues for 7 days after Client s receipt of written notice of non-payment; or (ii) more than one time in any thirty-six-month period.
(b) Client materially fails to perform its obligations under this Agreement (for avoidance of doubt providing Client Data to The BCT is a material obligation) and such failure continues for twenty-eight (28) days after the Effective Date.
(c) Client does not file an amended 941-X within twenty-eight (28) days after The BCT submits its completed ERC analysis to the Client.
9.4 The rights and obligations of the Parties set forth in Sections 6 through 21 and any right or obligation of the Parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement, and with respect to Confidential Information that constitutes a trade secret under applicable law, the rights and obligations set forth in Section 8 hereof will survive such termination or expiration of this Agreement until, if ever, such Confidential Information loses its trade secret protection other than due to an act or omission of the Receiving Party or the Receiving Party s Group.
All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth in the Client Engagement Letter or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction; provided, however, that if any fundamental term or provision of this Agreement (including when or how fees are due and payable), is invalid, illegal, or unenforceable, the remainder of this Agreement shall be unenforceable. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the court may modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
No amendment to or modification of or rescission, termination, or discharge of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination, or discharge of this Agreement and signed by an authorized representative of each Party.
No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
Client shall not assign any of its rights or delegate any of its obligations hereunder without the prior written consent of The BCT. However, The BCT may assign its rights or delegate its obligations, in whole or in part without Client consent but not without written notice to Client, to (a) any of The BCT Representatives (b) one or more of its affiliates, or (c) an entity that acquires all or substantially all of the business or assets of such party to which this Agreement pertains, whether by merger, reorganization, acquisition, sale, or otherwise. Any purported assignment or delegation in violation of this Section 14 shall be null and void.
This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
The relationship between the Parties is that of independent contractors. The details of the method and manner for performance of the Services by The BCT shall be under its own control, Client being interested only in the results thereof. The BCT shall be solely responsible for supervising, controlling and directing the details and manner of the completion of the Services. Nothing in this Agreement shall give the Client the right to instruct, supervise, control, or direct the details and manner of the completion of the Services. The Services must meet the Client s final approval and shall be subject to the Client s general right of inspection throughout the performance of the Services and to secure satisfactory final completion. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
Subject to the exceptions in this Section 17, this Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement. If The BCT elects to assign its rights or obligations under this Agreement to a third party pursuant to Paragraph 14 of this agreement, the Parties hereby designate The BCT a third-party beneficiary of this Agreement having the right to enforce Sections 6 through 21 of this Agreement.
This Agreement and all related documents including all exhibits attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of Ohio, United States of America (including its statutes of limitations and R.C. 2307.39), without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Ohio.
Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments, and appendices attached to this Agreement, and all contemplated transactions, including, but not limited to, contract, equity, tort, fraud, and statutory claims, in any forum other than the US District Court for the Southern District of Ohio or, the courts of the State of Ohio sitting in the County of Delaware, Ohio, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in the US District Court for the Southern District of Ohio or, the courts of the State of Ohio sitting in the County of Delaware, Ohio. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS, OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Notwithstanding anything to the contrary in Section 10, a signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.