Debtor's Application for Employment of Dave Frandsen — In re Remer & Georges-Pierre PLLC
Summary
The Debtor's Application for Employment of Dave Frandsen and Frandsen Accounting & Consulting, Inc. as Employee Retention Credit Consultant, filed June 22, 2023 as Doc 72 in the Subchapter V Chapter 11 case of Remer & Georges-Pierre PLLC, Case No. 23-10114-LMI, in the United States Bankruptcy Court for the Southern District of Florida. The Debtor asks to employ Frandsen, doing business as ERC Go, effective as of March 17, 2023, to assist with an Employee Retention Tax Credit refund from the Internal Revenue Service. Frandsen would receive 15% of any refund received and nothing if no refund is received; the refund is estimated at $401,245.22. The attached Services Agreement offers a "Pay Today" option at 12.00% and a "Pay Later" option at 15.00%. The application is signed /s/ by co-counsel LSS Law.
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“Debtor's Application for Employment of Dave Frandsen — In re Remer & Georges-Pierre PLLC.”
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Case 23-10114-LMI Doc 72 Filed 06/22/23 Page 1 of 14
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF FLORIDA
Miami Division
www.flsb.uscourts.gov
In re: Case No. 23-10114-LMI
REMER & GEORGES-PIERRE PLLC, Chapter 11
Debtor.
_____________________________________/
DEBTOR’S APPLICATION FOR EMPLOYMENT OF DAVE FRANDSEN AND
FRANDSEN ACCOUNTING & CONSULTING, INC. AS EMPLOYEE
RETENTION CREDIT CONSULTANT
Remer & Georges-Pierre PLLC (the “Debtor”), by counsel, pursuant to 11 U.S.C. § 327
and this Court’s Order Confirming the Debtor’s Subchapter V Plan of Reorganization [ECF No.
62] (the “Confirmation Order”), requests the Court enter an order authorizing the employment of
Dave Frandsen and Frandsen Accounting & Consulting, Inc., d/b/a ERC Go, a division of Frandsen
Accounting (collectively, “Frandsen”) to represent the Debtor in this case as Employee Retention
Credit Consultant, effective as of March 17, 2023, and states:
1. On January 6, 2023 (the “Petition Date”), the Debtor filed a voluntary petition under
Subchapter V of Chapter 11 of the United States Bankruptcy Code.
2. On June 6, 2023, the Court entered the Confirmation Order, which confirmed the
Debtor’s Plan of Reorganization [ECF No. 46] (the “Plan”).
3. The Debtor has been advised that it is entitled to receive an Employee Retention
Tax Credit (“ERTC”) refund (the “ERTC Refund”) from the Internal Revenue Service.
4. However, the Debtor requires assistance from a service provider familiar with the
ERTC Refund process, including without limitation, determining eligibility and receiving certain
consulting services in connection with the ERTC Refund process.
5. As such, the Debtor desires to employ Frandsen, in connection with such services.
6. The Debtor requests Court approval to enter into the Services Agreement attached
Case 23-10114-LMI Doc 72 Filed 06/22/23 Page 2 of 14
hereto as Exhibit “A”.
7. Pursuant to the Services Agreement, Frandsen will receive 15% of any ERTC
Refund received by the Debtor.
8. It is estimated that the amount of the ERTC Refund will be $401,245.22. However,
it is unknown at this time whether or not the ERTC Refund will actually be received by the Debtor.
9. The Plan and the Confirmation Order provide for certain disclosure requirements
by the Debtor with regard to the ERTC Refund, and further provide how the net amount of the
ERTC Refund will be distributed upon receipt. The provisions of the Plan and the Confirmation
Order are not affected by virtue of this Application.
10. By this Application, the Debtor is merely seeking to employ Frandsen as a
professional of the bankruptcy estate, pursuant to 11 U.S.C. § 327, and for authority to enter into
the Services Agreement.
11. The Debtor proposes that Frandsen be paid a 15% fee, from any ERTC Refund
received by the Debtor.
12. In the event that no ERTC Refund is received by the Debtor, Frandsen will not
receive any compensation.
13. The Debtor believes that Frandsen is qualified to advise the Debtor and complete
the tasks as set forth above.
14. To the best of the Debtor’s knowledge, Frandsen does not have any connection with
the creditors or other parties in interest or their respective attorneys. Frandsen does not represent
any interest adverse to the Debtor.
15. Prior to the hearing on this Application, the Debtor will file Frandsen’s Declaration,
demonstrating that Frandsen is disinterested as required by 11 U.S.C. § 327(a) and a verified
statement as required under Fed. R. Bankr. P. 2014.
WHEREFORE, the Debtor respectfully requests the Court enter an order: (a) authorizing
Case 23-10114-LMI Doc 72 Filed 06/22/23 Page 3 of 14
the retention of Frandsen, as Employee Retention Credit Consultant, effective as of March 17,
2023; (b) authorizing the Debtor to enter into the Services Agreement; (c) authorizing the Debtor
to pay a fee of 15% of the ERTC Refund received by the Debtor, without further order of court;
and (d) granting such other and further relief as the Court deems just and proper.
Dated: June 22, 2023 LSS LAW
Co-Counsel for the Debtor
2699 Stirling Road, Suite C401
Ft. Lauderdale, Florida 33312
Telephone: (954) 920-5355
Facsimile: (954) 920-5371
By:_________/s/______________
ZACH B. SHELOMITH
Florida Bar No. 0122548
zbs@lss.law
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was served on June 22, 2023
to all parties on the list to receive e-mail notice/service for this case, via the Notice of Electronic
Filing (which is incorporated herein by reference).
By:_________/s/_____________
Zach B. Shelomith
Case 23-10114-LMI Doc 72 Filed 06/22/23 Page 4 of 14
Services Agreement
This Services Agreement (this "Agreement"), dated as of 03/17/2023 (the "Effective Date"), is
by and between Frandsen Accounting & Consulting, INC, a Utah corporation, with offices
located at 714 W 2100 N Pleasant Grove, Utah 84062, ("Service Provider") and Remer &
Georges-Pierre, PLLC, a FLORIDA company, with offices located at 2745 Ponce De Leon Blvd,
Coral Gables, FL 33134 ("Customer" and together with Service Provider, the "Parties", and
each a "Party").
WHEREAS Service Provider has the capability and capacity to provide certain consulting for
businesses that want to make claims under the Employee Retention Credit provisions of the
Internal Revenue Code. services; and
WHEREAS Customer desires to retain Service Provider to provide the said services, and Service
Provider is willing to perform such services under the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set
forth and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Service Provider and Customer agree as follows:
1. Services. Service Provider shall provide to Customer the following services (the
"Services"):
1.1 Service Provider will identify opportunities under the Internal Revenue Code
(“IRC”), specifically regarding the Coronavirus Aid, Relief, and Economic Security Act
(“CARES Act”) and the Employee Retention Credit (“ERC”), to minimize various taxes that
may be owed by Customer and to obtain the benefit of any related tax credits.
1.2 Service Provider will provide an initial discovery and analysis of the
Customer’s business in order to determine that a tax credit is likely to be received, and will
not give further services if none is likely to be granted.
1.3 Service Provider will give guidance to Customer on how best to remain within
the bounds of the ERC;
1.4 Service Provider, will NOT provide legal advice, or tax-preparation services,
but will work with your tax provider to ensure that the ERC tax credits are applied.
2. Service Provider Obligations. Service Provider shall:
2.1 File the 941x tax form on behalf of Customer based on documents provided by
Customer;
2.2 Designate employees or contractors that it determines, in its sole discretion, to
be capable of filling the following positions:
(a) A primary contact to act as its authorized representative with respect to
all matters pertaining to this Agreement (the "Service Provider Contract Manager").
Exhibit "A"
Case 23-10114-LMI Doc 72 Filed 06/22/23 Page 5 of 14
(b) A number of employees or contractors that it deems sufficient to
perform the Services, (collectively, with the Service Provider Contract Manager,
"Provider Representatives").
2.3 Make no changes in Provider Representatives except:
(a) Following notice to Customer.
(b) Upon the resignation, termination, death or disability of an existing
Provider Representative.
(c) At the reasonable request of Customer, in which case Service Provider
shall use reasonable efforts to appoint a replacement at the earliest time it determines
to be commercially viable.
2.4 Maintain reasonable records relating to the provision of the Services under this
Agreement. During the Term and for a period of 3 years thereafter, upon Customer's written
request, Service Provider shall allow Customer or Customer's representative to inspect and
make copies of such records in connection with the provision of the Services; provided that
Customer provides Service Provider with at least 10 business days advance written notice of
the planned inspection, any such inspection shall take place during regular business hours,
and any such inspection shall occur no more than once per quarter.
3. Customer Obligations. Customer shall:
3.1 Designate 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 "Customer Contract Manager"), with such designation
to remain in force unless and until a successor Customer Contract Manager is appointed.
3.2 Require that the Customer Contract Manager respond promptly to any
reasonable requests from Service Provider for instructions, information or approvals
required by Service Provider to provide the Services.
3.3 Cooperate with Service Provider in its performance of the Services and provide
access to Customer's premises, employees, contractors, and equipment as required to enable
Service Provider to provide the Services.
3.4 Take all steps necessary, including obtaining any required licenses or consents,
to prevent Customer-caused delays in Service Provider's provision of the Services.
3.5 Customer will immediately notify Service Provider when they receive the IRS
CP210 letter (or other IRS communication with notice of ERC refund approval).
4. Fees and Expenses and Invoicing.
Exhibit "A"
Case 23-10114-LMI Doc 72 Filed 06/22/23 Page 6 of 14
4.1 Fee Calculation. Customer will choose one of the following options for Service
Provider remuneration; either:
Pay Time Frame Description Customer Indicates
Choice by Signing in
this column to the right
of the option they want
“Pay Today” Option Customer shall pay
12.00% of the value of the
After refund is calculated, ERC tax credits calculated
before refund is received. by Service Provider.
See Section 4.3(a).
OR
“Pay Later” Option Customer shall pay
15.00% of the total ERC
After refund is received. tax credit received to the
See Section 4.3(b). Service Provider. Electronically signed on
03/17/2023 17:23:24 UTC
4.2 Fees are deemed fully earned when provided, and any fees for previously
rendered Services are due to the Service Provider as soon as the ERC credit is confirmed by
the IRS. In the event that the Service Provider committed a clerical error causing for a
portion of the tax rebate to be rescinded by the IRS, Service Provider shall return an equal
portion of the fees paid to Service Provider.
4.3 Payment Process.
(a) Pay Today: Service Provider shall provide an invoice to Customer as
soon as the ERC tax credit refund is calculated by Service Provider, and Customer
shall pay that invoice within 30 days of receiving that invoice.
(b) Pay Later: Service Provider will send an invoice to Customer 90 days
after the 941x (or other filings related to the ERC) are filed. Customer shall pay the
invoice within 30 days of receiving the invoice, if Customer has already received
funds from the IRS; otherwise they shall pay the invoice within 30 days of receiving
the funds from the IRS.
(c) Customer shall notify Service Provider within five (5) business days
that they have received all, or a portion of, the refund from the IRS. Service Provider
shall then send an invoice to Customer, which Customer shall pay within 30 days. The
total amount due to Service Provider is due when the first payment from the IRS to
Customer is received, and Service Provider shall be paid the entire amount due, as fast
as possible from the given payments, with Service Provider having first priority.
Exhibit "A"
Case 23-10114-LMI Doc 72 Filed 06/22/23 Page 7 of 14
(d) Past due amounts: If any payment due to Service Provider is not
received by Service Provider within 30 days of the date of a given invoice, a 10% late
fee will be incurred by Customer and added to the overall amount due to Service
Provider. Beginning thirty days after the invoice is received by Customer, all funds
due to Service Provider will accrue interest at a rate of 2% per annum. Customer shall
reimburse Service Provider for all reasonable costs incurred in collecting any overdue
payments and related interest.
4.4 IRS Credit: In the event that the IRS uses the funds that Customer would have
received from the ERC to credit Customer’s debt to the IRS, Customer will pay Service
Provider the fee agreed upon in Section 4.1, but which shall be due 5 business days after
Customer received the relevant notice from the IRS.
5. Limited Warranty and Limitation of Liability.
5.1 Service Provider warrants that it shall perform the Services:
(a) In accordance with the terms and subject to the conditions set out in
this Agreement, or as mutually agreed to in writing.
(b) Using personnel of commercially reasonable skill, experience and
qualifications.
(c) In a timely, workmanlike, and professional manner in accordance with
generally recognized industry standards for similar services.
5.2 Service Provider's sole and exclusive liability and Customer's sole and
exclusive remedy for breach of this warranty shall be as follows:
(a) Service Provider shall use reasonable commercial efforts to promptly
cure any such breach; provided, that if Service Provider cannot cure such breach
within a reasonable time (but no more than 30 days) after Customer's written notice of
such breach, Customer may, at its option, terminate the Agreement by serving written
notice of termination in accordance with Section 8.2.
(b) In the event the Agreement is terminated pursuant to Section 5.2(a)
above, Service Provider shall within 30 days after the effective date of termination,
refund to Customer any fees paid by the Customer as of the date of termination for the
Service or Deliverables (as defined in Section 6 below), less a deduction equal to the
fees for receipt or use of such Deliverables or Service up to and including the date of
termination on a pro-rated basis.
(c) The foregoing remedy shall not be available unless Customer provides
written notice of such breach within 30 days after delivery of such Service or
Deliverable to Customer.
5.3 SERVICE PROVIDER MAKES NO WARRANTIES EXCEPT FOR THAT
PROVIDED IN SECTION 5.1, ABOVE. ALL OTHER WARRANTIES, EXPRESS AND
Exhibit "A"
Case 23-10114-LMI Doc 72 Filed 06/22/23 Page 8 of 14
IMPLIED (BY EITHER SERVICE PROVIDER OR ANY INDIVIDUAL WORKING FOR
OR REPRESENTING SERVICE PROVIDER), ARE EXPRESSLY DISCLAIMED.
CLIENT ACKNOWLEDGES THAT THEY HAVE NOT RELIED ON ANY
REPRESENTATION OR WARRANTY MADE BY SERVICE PROVIDER OR ANY
OTHER PERSON ACTING ON SERVICE PROVIDER’S BEHALF, EXCEPT AS
PROVIDER FOR IN SECTION 5.1.
6. Intellectual Property. All intellectual property rights, including copyrights, patents,
patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade
secrets, know-how and other confidential information, trade dress, trade names, logos, corporate
names and domain names, together with all of the goodwill associated therewith, derivative
works and all other rights (collectively, "Intellectual Property Rights") in and to all documents,
work product, and other materials that are delivered to Customer under this Agreement or
prepared by or on behalf of the Service Provider in the course of performing the Services,
(collectively, the "Deliverables") except for any Confidential Information of Customer or
customer materials shall be owned by Service Provider. Service Provider hereby grants
Customer a license to use all Intellectual Property Rights in the Deliverables free of additional
charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up,
royalty-free and perpetual basis to the extent necessary to enable Customer to make reasonable
use of the Deliverables and the Services.
7. Confidentiality. 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, and confidential information of Disclosing Party that, if
disclosed in writing or other tangible form is clearly labeled as "confidential," or if disclosed
orally, is identified as confidential when disclosed and within 10 days thereafter, is summarized
in writing and confirmed as confidential ("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 7; (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 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.
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
Exhibit "A"
Case 23-10114-LMI Doc 72 Filed 06/22/23 Page 9 of 14
purposes of this Section 7 only, Receiving Party’s Group shall mean the Receiving Party’s
affiliates and its or their employees, officers, directors, shareholders, partners, members,
managers, agents, independent contractors, service providers, sublicensees, subcontractors,
attorneys, accountants, and financial advisors.
8. Term, Termination, and Survival.
8.1 This Agreement shall commence as of the Effective Date and shall continue
thereafter until the completion of the Services unless sooner terminated pursuant to Section
8.2 or Section 8.3.
8.2 Either Party may terminate this Agreement, effective upon written notice to the
other Party (the "Defaulting Party") if the Defaulting Party:
(a) Materially breaches this Agreement, and such breach is incapable of
cure, or with respect to a material breach capable of cure, the Defaulting Party does
not cure such breach within 30 days after receipt of written notice of such breach.
(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 business days or is not dismissed or vacated within 45 business days after filing.
(d) Is dissolved or liquidated or takes any corporate action for such
purpose.
(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.
8.3 Notwithstanding anything to the contrary in Section 8.2(a), Service Provider
may terminate this Agreement before the expiration date of the Term on written notice if
Customer fails to pay any amount when due hereunder: (a) and such failure continues for 10
days after Customer's receipt of written notice of nonpayment; or (b) more than 2 times in
any 2 month period;
8.4 The rights and obligations of the Parties set forth in this Section 8.4 and in
Sections 5, 6, 7, 9 and [Alternative Dispute Resolution], 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.
8.5 NOTE: YOU, THE CUSTOMER, MAY CANCEL THIS CONTRACT AT
ANY TIME PRIOR TO MIDNIGHT OF THE THIRD BUSINESS DAY (or time period
reflecting the supplier's cancellation policy but not less than three business days) AFTER
Exhibit "A"
Case 23-10114-LMI Doc 72 Filed 06/22/23 Page 10 of 14
THE DATE OF THE TRANSACTION OR RECEIPT OF THE PRODUCT, WHICHEVER
IS LATER.
9. Limitation of Liability.
9.1 IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO
CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR
PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY
CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR
PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT,
TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER
SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SERVICE
PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND
NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF
ITS ESSENTIAL PURPOSE.
9.2 IN NO EVENT SHALL SERVICE PROVIDER'S AGGREGATE LIABILITY
ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT
OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE),
OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO
SERVICE PROVIDER PURSUANT TO THIS AGREEMENT.
10. Entire Agreement. This Agreement, including and together with any related
Statements of Work, exhibits, schedules, attachments and appendices, constitutes the sole and
entire agreement of the Parties with respect to the subject matter contained herein, and
supersedes all prior and contemporaneous understandings, agreements, representations and
warranties, both written and oral, regarding such subject matter.
11. Notices. All notices, requests, consents, claims, demands, waivers and other
communications under this Agreement (each, a "Notice", and with the correlative meaning
"Notify") must be in writing and addressed to the other Party at its address set forth below (or to
such other address that the receiving Party may designate from time to time in accordance with
this Section). Unless otherwise agreed herein, all Notices must be delivered by personal delivery,
nationally recognized overnight courier 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) on receipt by the receiving Party; and (b) if the Party giving the Notice has
complied with the requirements of this Section 11.
Notice to Customer: 2745 Ponce De Leon Blvd
Coral Gables, FL 33134
Attention: Anthony M. Georges-Pierre
Exhibit "A"
Case 23-10114-LMI Doc 72 Filed 06/22/23 Page 11 of 14
Notice to Service Provider: Frandsen Accounting & Consulting, INC
714 W 2100 N Pleasant Grove, UT 84062
Attention: Customer Service Representative
12. Severability. 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. Upon a
determination that any term or provision is invalid, illegal, or unenforceable, the Parties shall
negotiate in good faith to 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.
13. Amendments. No amendment to or modification of or rescission, termination, or
discharge of this Agreement is effective unless it is in writing and signed by an authorized
representative of each Party.
14. Waiver. 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.
15. Assignment. Customer shall not assign, transfer, delegate or subcontract any of its
rights or delegate any of its obligations under this Agreement without the prior written consent of
Service Provider. Any purported assignment or delegation in violation of this Section 15 shall be
null and void. No assignment or delegation shall relieve the Customer of any of its obligations
under this Agreement. Service Provider may assign any of its rights or delegate any of its
obligations to any affiliate or to any person acquiring all or substantially all of Service Provider's
assets without Customer's consent.
16. Successors and Assigns. This Agreement is binding on and inures to the benefit of the
Parties to this Agreement and their respective permitted successors and permitted assigns.
17. Relationship of the Parties.
17.1 Independent Contractor: The relationship between the Parties is that of
independent contractors. The details of the method and manner for performance of the
Services by Service Provider shall be under its own control, Customer being interested only
in the results thereof. The Service Provider 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 Customer the right to instruct, supervise, control, or direct
the details and manner of the completion of the Services. The Services must meet the
Exhibit "A"
Case 23-10114-LMI Doc 72 Filed 06/22/23 Page 12 of 14
Customer’s final approval and shall be subject to the Customer’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.
17.2 Non-Exclusive: This Agreement does not impose exclusivity on either party.
Customer has no obligation to refrain from seeking similar services from other parties, and
Service Provider has no obligation to refrain from providing its Services to other parties.
The Services hereunder are not exclusive to the Customer, and Customer understands that
Service Provider may provide the same or similar services to competitors of Customer.
18. No Third-Party Beneficiaries. 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 any legal or equitable right, benefit, or remedy
of any nature whatsoever under or by reason of this Agreement.
19. Choice of Law. This Agreement and all related documents, 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 Utah, United States of America
(including its statutes of limitations), 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 Utah.
20. Choice of Forum. 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 contract,
equity, tort, fraud and statutory claims, in any forum other than U.S. District Court, District of
Utah or, if such court does not have subject matter jurisdiction, the courts of the State of Utah
sitting in Salt Lake County, 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 U.S. District Court, District of Utah or, if such court does
not have subject matter jurisdiction, the courts of the State of Utah sitting in Salt Lake County.
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.
21. Counterparts. 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 11, 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.
22. Force Majeure. No Party shall be liable or responsible to the other Party, nor be
deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling
Exhibit "A"
Case 23-10114-LMI Doc 72 Filed 06/22/23 Page 13 of 14
or performing any term of this Agreement (except for any obligations of the Customer to make
payments to Service Provider hereunder), when and to the extent such failure or delay is caused
by or results from acts beyond the impacted party's ("Impacted Party") reasonable control,
including, without limitation, the following force majeure events ("Force Majeure Event(s)"):
( acts of God; ( flood, fire, earthquake, or explosion; ( war, invasion, hostilities (whether war is
declared or not), terrorist threats or acts, riot or other civil unrest; ( government order, law, or
actions; ( embargoes or blockades in effect on or after the date of this Agreement; ( national or
regional emergency; ( strikes, labor stoppages or slowdowns, or other industrial disturbances;
( shortage of adequate power or transportation facilities; and ( other events beyond the
reasonable control of the Impacted Party.
The Impacted Party shall give notice within 10 days of the Force Majeure Event to the
other Party, stating the period of time the occurrence is expected to continue. The Impacted Party
shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure
Event are minimized. The Impacted Party shall resume the performance of its obligations as soon
as reasonably practicable after the removal of the cause. In the event that the Impacted Party's
failure or delay remains uncured for a period of 10 consecutive days following written notice
given by it under this Section, the other Party may thereafter terminate this Agreement upon 10
days' written notice.
[SIGNATURE PAGE FOLLOWS]
Exhibit "A"
Case 23-10114-LMI Doc 72 Filed 06/22/23 Page 14 of 14
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of
the Effective Date by their respective duly authorized officers.
Remer & Georges-Pierre, PLLC
Name: Jason Remer
Title: Partner
By: _________________________________
Electronically signed on
03/17/2023 17:23:24 UTC
Frandsen Accounting & Consulting, INC
Name: Dave Frandsen
Title: CEO
Exhibit "A"
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