KICKSTART ACCOUNTING, INC.
- Applicability; Changes of the Terms.
These terms and conditions of the Service Agreement (the “Service Agreement”) entered into by and between you (“you” or “client”) and Kickstart Accounting, Inc., an Ohio corporation (“Kickstart,” “we,” or “us”) govern your access to and use of Kickstart Services as described in the Service Quote (the “Services”).
We may revise and update the terms and conditions of the Service Agreement from time to time in our sole discretion. All changes are effective immediately when we post them on our Website at https://kickstartaccountinginc.com/ and apply to all clients subscribing to the Services. Your continued use of our Services following the posting of revised terms and conditions of the Service Agreement means that you accept and agree to the changes. You are expected to check this page each time you access our Website, so you are aware of any changes, as they are binding on you.
2. Our Services.
a) We will provide the services selected by you in the Service Quote (the “Services”). and will use commercially reasonable efforts to provide the Services in an efficient and timely manner.
b) Kickstart representative(s) may provide ancillary services to those Services listed in the Service Quote, to support the functions performed by the management team and other key members of the Client. We will provide supervision and oversight of the activities of the Kickstart professional who is assigned to work with you.
c) You may decide to engage other third-party service providers to lead or engage in the provision of services not provided by Kickstart. Your agreement with those service providers is directly between the Client and that service provider. Any fees associated with those services are in no way connected with nor are they included in the fees listed in the Service Quote.
d) You may engage outside CPAs or other outside third-party service providers to perform services such as tax return preparation, the completion of audited, reviewed or compiled financial statements for third parties, and/or payroll services. If asked, we will assist you with the data gathering necessary for your outside third-party service provider to use. However, You and your outside third-party service providers shall be solely responsible for the preparation of said documents.
3. Client’s Obligations.
a) Our ability to complete the Services will depend on the cooperation of the management and other key employees of the Client. You will promptly provide Kickstart with such information or the access to such information as may reasonably be required for the proper performance of the Services, including access to appropriate members of your staff, records, information, systems, and premises. If for any reason, we are unable to complete the Services, we will notify You of any restrictions on our performance.
b) In performing the Services, we entirely rely upon the accuracy and reliability of all information provided to us by the Client, without independently verifying it, and we do not undertake any obligation to discover fraud by your personnel. You agree that, if anything occurs after the information is provided by You to us, to render such information incorrect or misleading, you will promptly notify Kickstart and take all necessary steps to correct any document or communication issued with the help of our Services that is based on, contains, or refers to such inaccurate information.
c) YOU SHALL RETAIN RESPONSIBILITY FOR THE USE OF, OR RELIANCE ON, THE INFORMATION SUPPLIED BY US IN THE DELIVERY OF THE SERVICES. For any Services we perform in coordination with your management team or other key employees, You are responsible for designating individuals with suitable skills and knowledge to evaluate the results of Services performed, maintain internal controls, and monitor ongoing business activities.
d) Kickstart may provide assistance with, but the Client shall be solely responsible for, the approval of all external use financial statements. You agree and undertake that any such statements must clearly state that they are the Client’s financial statements and have been approved by senior management of the Client.
4. Benefit of Advice; No Third-Party Reliance.
a) During the supply of our Services, we may supply oral, draft, or interim recommendations, reports, or presentations, but in such circumstances, our written advice or final written report shall take precedence. No reliance should be placed by you on any oral, draft, or interim recommendations, reports or presentations.
b) The financial information that we assist you to develop as part of the Services, which consists of reports, projections, or forecasts is for the sole benefit of the Client and not any unnamed third parties. Such reports, projections, or forecasts may be used for external purposes, provided that such documents are represented within your organization or to a third party as financial information which has been prepared by and has the approval of the Client’s management.
c) Unless otherwise specifically stated in the Agreement, any opinion or recommendation relating to the Services is provided solely for your benefit and internal use and may not be disclosed in any way, including any publication on any electronic media, to any third party. You acknowledge and agree that any advice, recommendations, information or work product (collectively “Work Product”) provided to you by Kickstart in connection with this Agreement is for your sole use. You agree that if you make such Work Product available to any third party, you will notice such third party, in writing, that Kickstart’ Work Product is for your sole benefit based on the scope of our engagement with you and is not intended to be relied upon by any other person. In the event of a claim by any third party relating to our Services under this Agreement that arises out of a breach by you of this paragraph, you agree to indemnify and hold harmless Kickstart, its members, managers, officers, agents, successors and assigns from all such claims, liabilities, costs and expenses, including reasonable attorney’s fees.
5. Independent Contractor Relationship.
You agree that Kickstart and its professionals will be serving the Client as independent contractors for all purposes and not as employees, agents, partners of or joint ventures with the Client. Kickstart will have control over the order and sequence of the Services provided and the specific hours worked and will not be subject to Client withholding of income or employment taxes. The Kickstart professionals will not serve as employees. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other forms 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.
6. Your Promises and Covenants to Us.
a) You agree that you shall refrain at all times (including in communications with any third parties) from referring to Kickstart professional(s) that provide Services to you as “acting CFO,” “interim CFO,” or any other similar title designation, and to otherwise refrain from misrepresenting the independent consulting relationship between us and you.
b) You agree not to solicit directly or indirectly, contract with, hire, or otherwise enter into an arrangement with any Kickstart professional assigned to provide Services to you while this Agreement is in effect and for a period of eighteen (18) months after our engagement ends without the prior written approval of an authorized representative of Kickstart.
7. Warranties and Disclaimers.
a) Each party warrants and represents to the other party that (i) it has the requisite power and authority to enter into the Agreement and to carry out the obligations contemplated by this Agreement; and (ii) the execution, delivery and performance of the Agreement have been duly authorized by the requisite action of the party.
b) ALL SERVICES ARE FURNISHED “AS IS.” EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THESE TERMS, KICKSTART MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (a) WARRANTY OR REPRESENTATION OF ACCURACY, RELIABILITY, OR SATISFACTORY RESULTS; (b) WARRANTY OR REPRESENTATION OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
Both parties hereto acknowledge that they have agreed and accepted the Mutual Confidentiality Agreement (“Mutual NDA”), which is incorporated in the Agreement by reference hereto.
9. Data Privacy.
10. Fees and Payment for Services.
a) Service fees for different service packages are listed in the Service Quote (“Service Fees”). The client shall pay Service Fees according to the payment terms for the selected service package in the Service Quote.
b) Fees associated with the preparation of external use financial statements and charged by your outside CPA or third-party service providers shall be paid by you directly to your outside CPA or third-party service provider and are not included in any fees charged by Kickstart.
c) Late payments shall bear interest at the lesser of (a) the rate of 1.5% per month and (b) the highest rate permissible under Ohio law, calculated daily and compounded monthly. In addition to all other remedies available under Terms or at law (which Kickstart does not waive by the exercise of any rights hereunder), Kickstart shall be entitled to suspend the provision of any Services or terminate the Agreement if the Client fails to pay all undisputed amounts/fees when due hereunder in full and such failure continues for fifteen (15) days following written notice thereof.
a) The Client agrees to defend, indemnify and hold harmless Kickstart, its affiliates, and their respective members, shareholders, managers, officers, agents, employees, representatives, insurers, heirs, successors and assigns (collectively, the “Indemnified Parties”), from and against all claims, causes of action, suits, losses, damages, and expenses, including reasonable attorney’s fees (collectively, “Claims”), arising out of or relating to, directly or indirectly: (i) the breach of any representation, warranty, or obligation under this Agreement by the Client or (ii) any legal action or proceeding brought by a third party, including, but not limited to, Client’s regulators, in which any Indemnified Party is named a party because Kickstart is a party to this Agreement or otherwise because it is providing Services hereunder, except for Claims arising from the illegal acts or willful misconduct of Kickstart.
b) Kickstart shall not be liable for any Claims arising out of reliance on any information provided by you or any of your representatives, which is inaccurate, misleading or incomplete. You agree to indemnify and hold harmless the Indemnified Parties from any such Claims by you or any third party as a result of reliance by Kickstart on any information provided by you or any of your representatives, which is inaccurate, misleading or incomplete.
c) The indemnity obligations of this Section 11 shall survive the termination or expiration of this Agreement.
12. Limitation of Liability.
IN THE EVENT THAT WE BREACH THIS AGREEMENT, YOU SHALL BE ENTITLED ONLY TO ACTUAL, DIRECT DAMAGES, IN THE AGGREGATE AMOUNT THAT SHALL NOT EXCEED THE ACTUAL FEES PAID TO US BY YOU, FOR SERVICES UNDER THIS AGREEMENT, FOR THE MOST RECENT MONTH. TO THE FULLEST EXTENT OF THE LAW, IN NO EVENT SHALL WE BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR LOSSES SUFFERED AS A RESULT OF THE PERFORMANCE OR NONPERFORMANCE OF ANY OF OUR OBLIGATIONS UNDER THIS AGREEMENT, ARISING UNDER ANY THEORY OF RECOVERY, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF COMMERCIAL OPPORTUNITY, OR OTHER SIMILAR ITEMS OF LOSS OR DAMAGE, EXCEPT IN THE CASE OF FRAUD OR WILLFUL MISCONDUCT. This paragraph shall survive the termination or expiration of this Agreement.
13. Intellectual Property.
a) We agree that all reports, projections, forecasts, and work products, if any, prepared as part of our Services to you (collectively, the “Deliverables”) are a “work made for hire” as defined in 17 U.S.C. § 101. If, for any reason, any of the Deliverables do not constitute a “work made for hire,” we hereby irrevocably assign to you, in each case without additional consideration, all right, title, and interest throughout the world in and to the Deliverables, including all intellectual property rights therein.
b) You retain all title and property rights in, the information and data you provide us in connection with the Services (the “Data”) remain your property. You hereby grant Kickstart a license to use, store, copy, transmit, and back-up your Data for the purposes of enabling us to provide Services to you. You must maintain back-up copies of all Data, as Kickstart does not guarantee there will be no loss of Data and expressly disclaims liability for any Data loss.
14. Term and Termination.
a) The term of this Agreement is thirty (30) days from the date of the execution of this Agreement by both parties (the “Effective Date”). Upon the expiration of the Agreement, the Agreement shall be automatically renewed for succeeding terms of one month each until the Agreement is terminated by either party according to Section 14 of this Agreement.
b) Either you or we may terminate this Agreement by providing a fifteen (15) days’ advance written notice to the other party. Without limiting the foregoing, this Agreement is based on our current understanding of the contractual undertakings we must assume to deliver the Services, as represented by you, and if those understandings are inaccurate, or you otherwise require Kickstart to undertake obligations that we cannot mutually agree on, Kickstart, at its sole discretion, may terminate this Agreement at any time. In event of termination by you, for any reason, you shall pay Kickstart all unpaid amounts due for Services rendered under this Agreement through the effective date of termination.
c) Termination under this Section 14 shall be without prejudice to any rights that may have accrued for either of us before termination and all sums due to us shall become payable in full immediately when termination takes effect.
14. Miscellaneous Provisions.
a) Force majeure. We shall not be liable or responsible to you, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion, or hostilities (whether war is declared or not), terrorist threats or acts riot, or other civil unrest, national emergency, revolution, insurrection, disease or pandemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce).
b) Governing Law; Jurisdiction. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule. Any action or proceeding arising out of or relating to this Agreement shall be instituted exclusively in the federal or state court, or arbitration tribunal, situated in Cuyahoga County, Ohio, and each party irrevocably submits to personal jurisdiction of such courts in any such action or proceeding.
c) Notices. 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 Service Quote or to such other address that may be designated by the receiving party in writing.
d) Counterparts. These Terms may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.
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