CLIENT’S CONSENT AND AGREEMENT FOR PRELIMINARY ANALYSIS
This Client’s Consent and Agreement for Preliminary Analysis (“Agreement”) is made by and between the undersigned client in your individual capacity and on behalf of any and all business entit(y/ies) and/or business(es) d/b/a's (“your business” and individually and jointly with you individually, “you” and “Client”), and Elite Resource Team LLC, a California limited liability company with a business office located at 501 W. Broadway, Suite 1360, San Diego, CA 92101 (“ERT” and “us”, and, together with you, the “parties”).
This Agreement is made and effective as of the date indicated below and is made by Your Consent (as defined below). This Agreement is deemed to be agreed to by ERT simultaneously upon your providing Your Consent. By signing, dating and submitting this Agreement electronically via the means described in this Agreement (“Your Consent”), you consent and agree as follows:
1. Client Desires Team Based Model Plan and Consents to Disclosure of Present Client Files. You acknowledge and represent that you desire to begin the process of exploring obtaining a Team Based Model Plan from ERT, on the one hand, or from your advising professional (“Professional”) and/ or your accountant (“Accountant”) together, on the other hand, as applicable, whereby areas of tax and expense savings for you, among other potential strategies, will be identified in a plan (the “TBM Plan”) and potentially sold to you. You acknowledge that you have given your Professional and Accountant your prior written consent to upload your tax, financial and other files (“Client Files”) on the ERT webpage (“Associated Webpage”) for the potential creation of a TBM Plan by ERT and its associated professionals or by Professional and/ or Accountant, as applicable. For avoidance of doubt, you hereby consent to us receiving, reviewing and analyzing your Client Files for the purpose of potentially creating a TBM Plan. You further consent to us subsequently disclosing your Client Files to one or more associated professionals of ERT for the same purpose.
2. Additional Client Files; Additional Client Consent for Disclosure. If any of ERT and its associated professionals require additional Client Files from you with respect to creating a potential TBM Plan for you, you agree to provide such additional Client Files. You further agree to provide (or that you have provided) your prior written consent to your Professional to subsequently disclose any additional Client Files to us with respect to you for the potential creation of a TBM Plan by ERT and its associated professionals. For avoidance of doubt, you hereby consent to us receiving, reviewing and analyzing any additional Client Files of yours for the purpose of potentially creating a TBM Plan. You further consent to us subsequently disclosing your additional Client Files to one or more associated professionals of ERT for the same purpose.
3. Selling and Completing Team Based Model Plan. There are two contemplated means whereby the TBM Plan may be sold to you and, therefore, whereby the TBM Plan may be delivered to you. Your Professional has the option to choose the means of such sale, which choice will be communicated to ERT and memorialized in a separate written agreement between ERT and Professional. The first option is that ERT sells the plan directly to you. The second option is that your Professional sells the plan to you.
a) ERT Sells TBM Plan. In the case where ERT sells the TBM Plan directly to you, ERT and you will be the sole negotiators in agreeing to the fee to be received by ERT for any TBM Plan (the “TBMP Fee”). You agree, in the case where ERT sells you the TBM Plan, that the entirety of any such TBMP Fee will be paid solely and directly to ERT. Any agreement between ERT and you to purchase the TBM Plan and for ERT to deliver the final TBM Plan will be memorialized in a separate written agreement between the parties, which agreement will not include your Professional or Accountant.
b) Professional Sells TBM Plan. In the case where your Professional sells the TBM Plan to you, you and the Professional are solely responsible for establishing the fee to be received by your Professional from you for any TBM Plan. Your Professional, together, as applicable, with Accountant, is solely responsible for preparing and delivering to you the final TBM Plan where the Professional sells the TBM Plan to you. You and your Professional and/ or Accountant, together or individually, as the case may be, are solely responsible for memorializing your agreement as to such fee and for the terms and conditions with respect to the delivery by your Professional and/ or Accountant to you of the final TBM Plan, which agreement will not include ERT. For avoidance of doubt, in the case where Professional sells the TBM Plan to you, ERT is not responsible for the preparation of the contents of or the delivery of the final TBM Plan to you, which are in the sole discretion and responsibility of Professional and/ or Accountant, together or individually, as the case may be, which shall be memorialized in your agreement with your Professional and/ or Accountant, as applicable.
4. Indemnification and Hold Harmless. Client agrees to indemnify, defend and hold harmless ERT and its associates, managers, members, officers, employees, contractors, agents, controlling persons, and assigns (ERT and each such person being an "Indemnified Party”) from and against any and all costs, expenses, losses, claims, actions, threats, proceedings, judgments, awards, damages and liabilities under any federal or state law, or any rule, regulation, procedure, policy, or otherwise issued, in whatever forum (including in no forum), and however arising, including from and against any and all costs and expenses of defense and attorney's fees incurred in defending or preparing towards defending against the same, which result, arise out of and/or relate in any way to any act or omission of Client, whether under this Agreement or otherwise, including, without limitation, resulting, arising out of and/or related to the acts and/or omissions of any associate, shareholder, manager, member, officer, director, relative, beneficiary, employee, contractor, agent, controlling person, trustee and/or assign of Client, and/or which result, arise out of and/or relate in any way to any act or omission of Professional and/or Accountant (including those acts and/or omissions of any business entity or business d/b/a of Professional and/or Accountant and/or those acts and/or omissions of any of the associates, shareholders, managers, members, officers, directors, employees, contractors, agents, controlling persons and/or assigns of Professional and/or Accountant) in: (i) obtaining your prior written consent to upload the Client Files, (ii) uploading the Client Files, (iii) obtaining any subsequent required consent from you to upload any additional Client Files, (iv) uploading any such additional Client Files, and/or (v) in the case that Professional sells the TBM Plan to you (whether alone or in conjunction with Accountant), in: (a) Professional’s and/or Accountant’s carrying out the steps of the sale, preparation and delivery of the Final TBM Plan, including his, her or their, as applicable, discussing, modeling, and/or executing the TBM Plan process, sale, costs, risks, steps and/or strategies with you and/or with your associates, shareholders, managers, members, officers, directors, relatives, beneficiaries, employees, contractors, agents, controlling persons, trustees, and/or assigns, and/or (b) arising out of and/or related to the implementation and/or maintenance of the Final TBM Plan. Client acknowledges and agrees that no Indemnified Party shall have any liability to Client, or to an associate, shareholder, manager, member, officer, director, relative, beneficiary, employee, contractor, agent, controlling person, trustee and/or assign of Client, under this Agreement, except due to ERT’s willful misconduct or gross negligence.
5. Dispute Resolution. The parties to this Agreement agree to have any dispute arising hereunder adjudicated through binding arbitration before the American Arbitration Association located in San Diego, California and agree to submit to the jurisdiction of that tribunal. If any legal or arbitration or other proceeding is initiated to enforce this Agreement, or as a result of an alleged breach, dispute, or misrepresentation in connection with this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and other costs incurred in the action or proceeding. The parties acknowledge that this Agreement was entered into and shall be governed by the internal laws of the State of California. Notwithstanding the foregoing, the parties, and any party, may discuss any dispute or potential dispute in person, orally or through written communication (including via email) with the other party and with its own advisors prior to commencing any arbitration proceeding.
6. Power and Authority. Client represents and warrants that you, individually, and on behalf of your business (including any and all business entit(y/ies) and/or business(es) d/b/a’s), are authorized to execute this Agreement by providing Your Consent, and that this Agreement is executed by you providing Your Consent. If Client has a business entity and/or business d/b/a that is a deemed signatory to this Agreement (by virtue of you providing Your Consent), Client represents to ERT that: (i) such entity (whether a corporation, limited liability company, partnership, trust, or other entity) has the power (a) to cause Client to enter into this Agreement on its behalf, and (b) to execute its duties and obligations under this Agreement; and (ii) all necessary and appropriate corporate, limited liability company, partnership, trust or other entity actions and approvals have been taken to authorize Client to enter into this Agreement on behalf of such entity and to undertake the duties and obligations of this Agreement, and that the duties and obligations of Client under this Agreement are also duties and obligations of such business entity and/or business d/b/a.
7. Entire Agreement. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof, and cancels and supersedes all prior agreements, arrangements and understandings, whether written or oral, among the parties hereto. No statement, representation, promise, or inducement has been made by any party hereto, whether written or oral, that is not embodied in this Agreement, and no party shall be bound by, or be liable for, any such actual or alleged statement, representation, promise or inducement.
8. Amendments. This Agreement may be amended, modified, superseded, canceled, renewed, or extended, and the terms hereof may be waived, only in writing signed by the parties.
9. Construction. Any rule of law or principle of common law, which would require interpretation of any ambiguities in this Agreement against the party that has drafted it, is hereby expressly waived. Headings in this Agreement are not terms but are for convenience only. If one or more provisions of this Agreement is deemed unenforceable it will be separable and all other provisions will be enforceable to the fullest extent allowable.
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