Affiliate Agreement

This Affiliate Agreement (this “Agreement”) is made effective as of the date agreed to in the documents submitted in conjunction with this electronic Agreement (the “Effective Date”), by and between ERC Specialists, LLC (“ERC Specialists”), a Utah limited liability company with its principal place of business at 560 E. Timpanogos Circle, Orem, UT 84097, and the Affiliate electronically signing and submitting the onboarding form (“Affiliate”). ERC Specialists and Affiliate may be referred to herein jointly as the Parties.

RECITALS

A. ERC Specialists has built and maintains a proprietary software platform through which ERC Specialists offers services (the “Services”) related to the Employee Retention Tax Credit (the “Tax Credit”) established pursuant to the Coronavirus Aid, Relief, and Economic Security Act, any amendments or any additions thereto (collectively, the “CARES Act”), and/or other applicable law.

B. Affiliate desires to market the Services to its clients and refer its Prospects to ERC Specialists to perform the Services.

NOW, THEREFORE, in consideration of the mutual promises contained herein, and for other good and valuable consideration, the receipt and sufficiency which are hereby acknowledged, the Parties hereto, intending to be legally bound hereby, agree as follows:

1. Engagement. Affiliate agrees to contact businesses and other entities who may qualify for the Tax Credit (each, a “Prospect”), market the Services to them, and refer Prospects to ERC Specialists that may qualify for the Tax Credit. Each Prospect that signs an agreement with ERC Specialists to perform the Services (a “Client Services Agreement”) shall be called a “Client.”
2. Compensation. ERC Specialists shall pay a fee to Affiliate (the “Affiliate Fee”) for each Client who actually receives the full Tax Credit from the IRS. The Affiliate Fee shall be 20% of the “ERC Specialists Fee,” which is defined as payments actually received by ERC Specialists under the Client Services Agreement with the Client. ERC Specialists will pay the Affiliate Fee to Affiliate on the fifteenth day of the month after the month in which ERC Specialists receives the ERC Specialists Fee. No other fees and/or expenses will be paid to the Affiliate. Any additional monies collected outside the ERC Specialists fee from the client will be grounds for immediate termination and Affiliate forfeits any claim to any and all outstanding Affiliate Fees.  In the event of a commission dispute between two Affiliates ERC shall have sole discretion to determine who is entitled to the commission and such determination shall be final. The Commission earned by an Affiliate shall be subject to the attached ERC Affiliate Commission Scale.
3. Fee Clawback. In the event Affiliate is paid the Affiliate Fee related to a Client and the Internal Revenue Service later claws back some or all of that Client’s Tax Credit, Affiliate shall return to ERC Specialists the same percentage of the Affiliate Fee as the percentage of the Tax Credit that the Internal Revenue Service claws back from the Client. Affiliate shall pay any funds due to ERC Specialists under this section to ERC Specialists via wire within three (3) business days of written request from ERC Specialists.
4. Independent Contractor. Affiliate enters into this Agreement, and will remain throughout the term of this Agreement, as an independent contractor. Affiliate agrees that neither Affiliate nor any Affiliate personnel is or will become an employee, partner, agent, or principal of ERC Specialists while this Agreement is in effect. This Agreement does not in any way create any type of partnership, association, joint venture, or other business relationship. Affiliate agrees neither Affiliate nor any Affiliate personnel shall be entitled to the rights or benefits afforded to ERC Specialists employees, including but not limited to, disability or unemployment insurance, workers’ compensation, medical or life insurance, sick leave, compensation time, overtime, retirement or holiday benefits, vacation time, profit sharing, bonuses, or any other employment benefit. Affiliate is responsible for providing, at its own expense, disability, unemployment, and other insurance, workers’ compensation, training, permits, licenses, and any other requirement for Affiliate and for Affiliate’s employees and subcontractors. Nothing in this Agreement shall be construed to give Affiliate or any Affiliate personnel any authority (i) to represent that such person is an employee of ERC Specialists, (ii) to bind ERC Specialists with respect to contracts or representations or any other matters, or (iii) to represent ERC Specialists before any court or government or regulatory authority without the express written authorization of ERC Specialists. All marketing materials utilized by affiliate must make clear Affiliate and ERC Specialists are separate and distinct Parties. Affiliate should never utilize marketing materials which could cause a Client to reasonably believe they are directly contacting ERC Specialists when in fact they are contacting the Affiliate. This includes all methods of marketing including but not limited to, SEO, paid advertisements, mailings, circulars, or any marketing scheme where the services of ERC Specialists is being marketed.Independent Contractor. Affiliate enters into this Agreement, and will remain throughout the term of this Agreement, as an independent contractor. Affiliate agrees that neither Affiliate nor any Affiliate personnel is or will become an employee, partner, agent, or principal of ERC Specialists while this Agreement is in effect. This Agreement does not in any way create any type of partnership, association, joint venture, or other business relationship. Affiliate agrees neither Affiliate nor any Affiliate personnel shall be entitled to the rights or benefits afforded to ERC Specialists employees, including but not limited to, disability or unemployment insurance, workers’ compensation, medical or life insurance, sick leave, compensation time, overtime, retirement or holiday benefits, vacation time, profit sharing, bonuses, or any other employment benefit. Affiliate is responsible for providing, at its own expense, disability, unemployment, and other insurance, workers’ compensation, training, permits, licenses, and any other requirement for Affiliate and for Affiliate’s employees and subcontractors. Nothing in this Agreement shall be construed to give Affiliate or any Affiliate personnel any authority (i) to represent that such person is an employee of ERC Specialists, (ii) to bind ERC Specialists with respect to contracts or representations or any other matters, or (iii) to represent ERC Specialists before any court or government or regulatory authority without the express written authorization of ERC Specialists. All marketing materials utilized by affiliate must make clear Affiliate and ERC Specialists are separate and distinct Parties. Affiliate should never utilize marketing materials which could cause a Client to reasonably believe they are directly contacting ERC Specialists when in fact they are contacting the Affiliate. This includes all methods of marketing including but not limited to, SEO, paid advertisements, mailings, circulars, or any marketing scheme where the services of ERC Specialists is being marketed.
5. Term/Termination. This Agreement shall automatically terminate on the date that is two (2) years after the Effective Date. Notwithstanding any other provision herein, either Party may terminate this Agreement at any time upon written notice to the other Party. All obligations under Sections 2 and 3 above shall survive termination of this Agreement with respect to Clients who became Clients prior to such termination. All obligations under Sections 6, 7, and 8 below shall survive termination of this Agreement.
6. Advertising. Affiliate is prohibited from using misleading or deceptive claims in advertising copy. Affiliate is solely responsible for following all federal, state and local laws, regulations and rules regarding advertising claims, including but not limited to the Federal Trade Commission’s Disclosure Guidelines. Affiliate must adhere to all the editorial guidelines and search advertising terms and conditions set forth by each search engine (Google, Yahoo, Bing and other), including any updates to those terms in the future. Where search engine guidelines and this Agreement conflict, you must follow this Agreement.
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   When creating ads, videos, or other online content that publishes your affiliate URL on websites, ERC Speicalists' brand image needs to be kept in mind. Sites where you advertise cannot be associated with content that's vulgar, racist, sexual, or otherwise deemed offensive by ERC Specialists. You must remove all ads and videos from websites deemed offensive within 24 hours of being notified by ERC Specialists. The ERC Specialists logo cannot be altered or changed in any way. You are prohibited from creating groups or specific web pages in social communities to publicize ERC Specialists offers without prior written approval from ERC Specialists.
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   Search engine optimization and pay per click activities are allowed with the following requirements: a) If you are sending paid traffic (PPC, PPV, Media Buys) to ERC Specialists, Affiliate must send the traffic through a landing page or web property first. b) Direct linking is not allowed. c) Affiliates are strictly prohibited from using keywords that include our brand name: ERC Specialists, ERC Specialist, ercspecialists.com, or any variation or combination therein. d) Affiliate must not knowingly serve ads that appear in a higher position than ERC Specialists’ managed ads.
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   You must not purchase or use domain names containing any ERC Specialists, including domain names that combine ERC Specialists with one or more additional words, letters, numbers, or other characters, or domain names containing any misspelling or other confusingly similar variation of any ERC Specialists.
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   Self-referrals are strictly prohibited and will not be paid commissions.
   Clickjacking, linkjacking, typosquatting or any sort of domain spoofing methods are prohibited.
   Pixel, cookie stuffing or any other type of cookie stuffing without source website visitor's knowledge is prohibited.
   Using traffic generated by pay to read, P2C (pay to click), banner exchanges, click exchanges, PPV advertising, pop-up/under, or similar methods is prohibited.
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   Violating any of the aforementioned advertising rules will result in immediate removal from the ERC Specialists affiliate program and forfeiture of any commissions earned using any of these prohibited advertising methods.
7. Confidentiality. In the course of the Parties’ business dealings, Affiliate may gain access to confidential and proprietary information about ERC Specialists and ERC Specialists’ affairs and operations. Such “Confidential Information” includes, but is not limited to, all non-public information which constitutes, relates, or refers to the operation of the business of ERC Specialists, including without limitation all financial, investment, operational, personnel, sales, marketing, managerial, and statistical information of ERC Specialists, any and all trade secrets, customer lists, or pricing information of ERC Specialists, and any and all other information that, from its nature and manner of disclosure, a reasonable person would understand to be confidential. Affiliate will indefinitely keep this Confidential Information in the strictest confidence, and will not disclose it, or allow it to be disclosed, by any means to any person except with ERC Specialists’ approval, and only to the extent necessary to perform its obligations under this Agreement. Affiliate agrees to use the Confidential Information solely for the purpose of performing its obligations under this Agreement and not for any other purpose or for its own benefit or for the benefit of any third party, without the prior written approval of ERC Specialists. The prohibitions and agreements herein also apply to Affiliate’s employees, agents, and subcontractors. On termination of this Agreement, Affiliate will return any Confidential Information in its possession to ERC Specialists. Affiliate will notify ERC Specialists immediately of any disclosure of Confidential Information and cooperate in discovering the source of the disclosure.
8. Non-Solicitation. During the term of this Agreement and continuing for a period of one (1) year after termination of this Agreement, Affiliate shall not directly or indirectly contact, solicit, advise, or consult with any client or customer of ERC Specialists for the purpose of, or with the effect of, causing such client or customer to purchase, license, or otherwise obtain products or services from a person, firm, business, or entity in competition with ERC Specialists. In addition, during the term of this Agreement and continuing for a period of one (1) year after termination of this Agreement, Affiliate shall not directly or indirectly interfere with the business relationship between ERC Specialists and any of its clients, customers, accounts, dealers, distributors, suppliers, vendors, employees, independent contractors, service providers, or other parties with which ERC Specialists has business relationships, or induce any such party to terminate its relationship with ERC Specialists, or to modify the terms of such relationship in a manner adverse to the best interests of ERC Specialists. Affiliate specifically acknowledges and agrees that the nature of the limitations upon Affiliate’s activities as specified herein, together with the duration and scope of such restrictions, are reasonable limitations on Affiliate’s activities and that the restrictions are required to preserve, promote, and protect the business, accounts, proprietary information, and goodwill of ERC Specialists and impose no greater restraint than is reasonably necessary to secure such protection.
9. Indemnification. Affiliate shall indemnify, defend, and hold harmless ERC Specialists, its affiliates, and their respective officers, directors, employees, and agents against all damages, claims, liabilities, losses, and expenses, including without limitation attorneys’ fees and related costs, in any way arising out of Affiliate’s or any of its agent’s: breach hereof, negligence, or willful misconduct; violation of any applicable law, ordinance, rule, or regulation; breach of any warranty hereunder; or provision of inaccurate, erroneous, or incomplete information by or on behalf of Affiliate. ERC Specialists shall provide Affiliate with prompt notice of any claim and also cooperate in all reasonable respects with Affiliate, its insurance company, and its legal counsel in its defense of such claim at Affiliate’s sole expense. Affiliate may not settle any potential suit hereunder without ERC Specialists’ prior written approval. If Affiliate fails to promptly indemnify and defend a covered claim, ERC Specialists shall have the right to defend itself, and in such case, Affiliate shall promptly reimburse ERC Specialists for all of ERC Specialists’ associated costs and expenses.
10. Entire Agreement. This Agreement constitutes the entire contract and understanding between the Parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous letters of intent, agreements, covenants, negotiations, arrangements, communications, representations, understandings, or warranties, whether oral or written, of either Party relating thereto. This Agreement may only be amended or modified by a writing signed by authorized representatives of both Parties. Affiliates shall not enter into any additional contract or agreement with the Clients of ERC Specialists without first obtaining prior written approval from ERC Specialists.
11. No Waiver. The waiver by ERC Specialists of a breach of any provision of this Agreement by Affiliate shall not operate or be construed as a waiver of any subsequent breach by Affiliate.
12. Severability. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
13. Governing Law, Venue, and Attorneys’ Fees. This Agreement will be governed by the laws of the State of Utah, without regard to its conflict of laws principles. The Parties hereby agree that any action arising out of this Agreement shall be brought solely in the state or federal courts located in Salt Lake City, Utah, and both Parties hereby submit to the exclusive jurisdiction and venue of any such court in any such action. The prevailing Party in any action arising out of this Agreement shall be entitled to recover from the losing Party its reasonable attorneys’ fees and costs in addition to any other relief to which such Party is entitled.
    
14. Signature. This Agreement shall be presumed accepted by the Affiliate upon signing and submission of the onboarding form.
    

ERC Specialists, LLC

By: Joshua Zieglowsky
Date: as of date submitted
Josh Zieglowsky

AGREED TO AND ACCEPTED
Upon signing and submission of onboarding form.