Terms & Conditions
Introduction
1) These terms and conditions set out the general terms under which we undertake our business here at Kimcox. The specific conditions relating to particular assignments will be covered in your Engagement Letter and Fee Terms.
Applicable Law
2) This Agreement and any Work Order will be governed by and construed according to the laws of the State of Florida. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by binding arbitration held in Broward County, Florida, and administered by the American Arbitration Association in accordance with its Rules for Professional Accounting and Related Services. The prevailing party in any arbitration conducted pursuant to the Agreement shall be awarded its fees and costs incurred in the arbitration, including but not limited to reasonable attorneys’ fees. Judgment on the award rendered by the arbitrator(s) may be entered in any court having proper jurisdiction.
Commissions or Other Benefits
3) In some circumstances, commissions or other benefits may become payable to us in respect of transactions which we arrange for you. Where this happens we will notify you in writing of the amount and terms of payment. The same will apply where the payment is made to or transactions are arranged by a person or business connected with ours.
Communication
4) Unless you instruct us otherwise we may, where appropriate, communicate with you and with third parties via email or by other electronic means. The recipient is responsible for virus checking emails and any attachments. Please note that we are unable to accept communication via traditional mail and can provide instructions for using the secure portal references below in paragraph 5.
5) With electronic communication there is a risk of non-receipt, delayed receipt, inadvertent misdirection, or interception by third parties. In our aim to provide the best customer service that we can, we use a secure portal for communication relating to work performed by Kimcox. We also use virus-scanning software to reduce the risk of viruses and similar damaging items being transmitted through emails or electronic storage devices. However electronic communication is not completely secure and we cannot be held responsible for damage or loss caused by viruses nor for communications which are corrupted or altered after dispatch. These are risks you must bear in return for greater efficiency and lower costs.
Confidentiality
6) Definition. For the purposes of this Agreement, “Confidential Information” shall mean any and all non-public information provided to Kimcox by you, the Client, including but not limited to Client’s financial information, customer data, customer lists, internal Client documents, and related information. Confidential Information shall not include information that: (i) has become part of the public domain through no act or omission of Kimcox, (ii) was developed independently by Kimcox, or (iii) is or was lawfully and independently provided to Kimcox prior to disclosure by Client, from a third party who is not and was not subject to an obligation of confidentiality or otherwise prohibited from transmitting such information.
7) Use. Kimcox shall use commercially reasonable efforts to hold all Confidential Information in confidence in accordance with the terms of this Agreement. Kimcox shall not use or disclose such information to any third party for any purpose, except (i) as expressly authorized by you, the Client in writing, or (ii) as needed to fulfill the obligations of Kimcox under this Agreement or any Work Order. If Kimcox is required to disclose the Confidential Information to any third party as described in part (ii) of the preceding sentence, then Kimcox shall ensure that such third party is required, by written agreement, to keep the information confidential under terms that are at least as restrictive as those stated in this Agreement.
8) Compelled Disclosure. If Kimcox is legally compelled (whether by deposition, interrogatory, request for documents, subpoena, civil investigation, demand or similar process) to disclose any of the Confidential Information, Kimcox shall immediately notify you, the Client, in writing of such requirement so that Client may seek a protective order or other appropriate remedy and/or waive Kimcox’s compliance with the provisions of this Section. Kimcox will use commercially reasonable efforts, at Client’s expense, to obtain or assist Kimcox in obtaining any such protective order. Failing the entry of a protective order or the receipt of a waiver hereunder, Kimcox may disclose, without liability hereunder, that portion (and only that portion) of the Confidential Information that Kimcox has been advised by legal counsel reasonably acceptable to Kimcox, that it is legally compelled to disclose.
Disengagement
9) Should we resign or be requested to resign, a disengagement letter will be issued to ensure that our respective responsibilities are clear.
10) Should we have no contact with you for a period of 3 months or more we may issue a disengagement letter and consider the engagement terminated.
Fees
11) The Monthly Fee for the Services set forth in your Schedule of Services (the “Monthly Fee”) is payable on the first day of each month, or, pursuant to the terms of the Agreement, the Client will be billed for the Services at the hourly rates set forth on your Schedule of Services or a subsequent Work Order (the “Fees”), and Client will be invoiced on a monthly basis. Out of pocket costs incurred by Kimcox in the provision of the Services, and hourly fees for any work not included in the Services, or a subsequent Work Order (collectively “Additional Fees”), will be invoiced to Client on a monthly basis. Kimcox will bill the account designated by Client during Registration five (5) days after the Client is invoiced, on a recurring monthly basis or as per the terms of your Agreement. Client may designate a different payment account by written notice to Kimcox. Client agrees to submit the first Monthly Fee on the Effective Date.
12) Please note that any payment made more than fifteen (15) days after the date on which it is due is considered late. Late payments will be subject to interest on the unpaid amount until and including the date payment is received, at a rate of 1.5% per month. If any amounts due to Kimcox remain unpaid for more than 30 days, Kimcox reserves the right to stop work for Client until such time as Client brings its account current, or immediately terminate this Agreement. Client will be responsible for all reasonable attorneys’ fees and costs incurred in the collection of past due balances, including but not limited to collection fees, filing fees, arbitration costs and court costs. Kimcox may increase the [Monthly Fee/Fees] and any other amounts set forth in your Schedule of Services or any Work Order by providing Client with sixty (60) days’ advance written notice.
Intellectual Property Rights
13) Kimcox will retain all copyright and other intellectual property rights relating to Kimcox in any document prepared by us during the course of carrying out the Services, except where the law specifically provides otherwise.
Interpretation
14) If any provision of the engagement letter or schedules is held to be void, then that provision will be deemed not to form part of this contract.
15) In the event of any conflict between these terms of business and the engagement letter or appendices, the relevant provision in the engagement letter or schedules will take precedence.
16) Please note the failure of either party to enforce or insist upon compliance with any of the terms and conditions of this Agreement, the temporary or recurring waiver of any term or condition of this Agreement, or the granting of an extension of the time for performance, shall not constitute an Agreement to waive such terms with respect to any other occurrences.
Limitation of Liability
17) By signing this agreement you, the Client, accepts that in no event will Kimcox be liable for any special, indirect, punitive, exemplary or consequential damages, or for lost revenue, loss of profits, savings or other economic loss arising out of, or in connection with this Agreement (including its termination), any Work Order(s) or any services performed hereunder even if Kimcox has been advised of the possibility of such damages. Kimcox’s aggregate liability to Client for damages from any and all causes, shall be limited to the amount of Client’s actual direct damages. Damages assessed against Kimcox will not exceed the total amount of Monthly Fees paid by Client to Kimcox for the Services during the three (3) months immediately prior to the date on which the cause of action accrued, OR the amount of fines and penalties assessed by governmental authorities to the Client as a direct result of the work performed by Kimcox.
Notification and Notices
18) We shall not be treated as having notice, for the purposes of our payroll, reporting, and tax responsibilities, of information provided to members of our firm other than those engaged on the specific assignment (for example, information provided in connection with accounting, taxation, and other services).
19) Where notice is required to be provided to a party under this Agreement, such notice shall be deemed delivered upon receipt by the receiving party, or refusal of delivery, when deposited in the United States Mail, first class mail, certified or return receipt requested, postage prepaid, or one (1) day following delivery to the carrier when sent by FedEx to the addresses set forth in the opening paragraph of this Agreement, or to such other address(es) as the parties may designate from time to time.
Period of Engagement and Termination
20) Unless otherwise set forth in your Scope or this Agreement Kimcox will begin work upon your implicit or explicit acceptance of that letter. Except as stated in that letter we will not be responsible for periods before that date.
21) Either party may terminate this agreement at any time, and for any reason (or no reason) by providing thirty (30) days’ prior written notice. The termination date in such situation will be the last day of the calendar month following the expiration of the 30-day notice period. This Agreement may be terminated immediately upon a party’s material breach of the Agreement, or according to the mutual consent of the parties. Unless otherwise agreed, Client will be responsible for all fees and expenses accrued by Kimcox up to and including the termination date pursuant to a final invoice provided by Kimcox (the “Final Invoice.”). Client agrees to pay all amounts set forth on the Final Invoice within fifteen (15) days of the termination date.
Quality of Service
22) Kimcox aims to provide a high quality of service at all times. If you would like to discuss with us how our service could be improved or if you are dissatisfied with the service that you are receiving please let us know as soon as possible by contacting Christopher Cox.
Reliance on Advice
23) We strive to record all important matters regarding our work (“Advice”) in writing. Any Advice given orally is not intended to be relied upon unless confirmed in writing. Therefore, if we provide oral Advice (ie. during a meeting or a telephone call) and you wish to be able to rely on that advice, you must ask for the advice to be confirmed by us in writing.
Retention of Records
24) You have a legal responsibility to retain documents and records relevant to your tax affairs. During the course of our work we may collect information from you and others relevant to your affairs. Any original documents provided to Kimcox will be returned to you.
25) Client is responsible for providing adequate access to all software applications, online banking and documents necessary for Kimcox to provide the Services. Kimcox will keep work papers and other records related to this Agreement for four (4) years. When records and work papers are returned to Client, it is Client’s responsibility to retain and protect them for future use.
Third Party
26) No Third-Party Beneficiaries. The Parties have entered into this Agreement solely for their own benefit. They intend no third party to be able to rely upon or enforce this Agreement or any part of this Agreement.
Timetable
27) The services we undertake to perform for you will be carried out on a timescale to be determined between us on an ongoing basis whether it be hourly, monthly, etc, per your binding Agreement.
28) The timing of our work will be dependent on the prompt supply of all information and documentation as and when required by us.
29) The parties mutually agree that any action for and arising out of this Agreement or any Work Order must be commenced within one (1) year after the cause of action accrues or the action is forever barred.
Legal Proceedings
30) In the event we are required to respond to a subpoena, court order or other legal process for the production of documents and/or testimony relative to information we obtained and/or prepared during the course of this engagement, you agree to compensate us at our standard hourly rates then existing for the time we expend in connection with such response, and to reimburse us for all of our out-of-pocket costs incurred in that regard.
31) In the event that we become obligated to pay any judgment, fine, penalty, or similar award or sanction; agree to pay any amount in settlement; and/or incur any costs, as a result of a claim, investigation, or other proceeding instituted by any third party, including any governmental or quasi-governmental body, and if such obligation is a direct or indirect result of any inaccurate or incomplete information that you provide to us during the course of this engagement, whether intentionally or negligently, and not any failure on our part to comply with professional standards, you agree to indemnify us, defend us, and hold us harmless as against such obligations, agreements, and/or costs.
Additions
32) If any provision hereof or any Work Order is declared invalid by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity, illegibility or unenforceability so that the remainder of that provision and all remaining provisions of this Agreement and any Work Order shall be valid and enforceable to the fullest extent permitted by applicable law.
33) Assignment by Kimcox. Kimcox may sell, assign, or transfer this Agreement, or any right or obligation hereunder. Client shall not assert, against any assignee, any defense, counterclaim, or setoff that Client may have against Kimcox. In the event an assignment occurs, Kimcox will notify the client of such assignment within ten (10) days.
34) Assignment by Client. Client may not sell, assign, or transfer this Agreement, or any right or obligation hereunder, without prior written consent of Kimcox.
35) Amendment. No amendment or modification of this Agreement or any Work Order (including any schedules or exhibits) shall be valid or binding upon the parties unless such amendment or modification specifically refers to this Agreement, is in writing, and is signed by an authorized officer of each party.
36) Merger. This Agreement, together with any Work Order(s), sets forth the entire understanding of the parties and supersedes any and all prior agreements, arrangements or understandings related to the Services, and no representation, promise, inducement or statement of intention has been made by either party which is not embodied herein. Any document that is not expressly and specifically incorporated into this Agreement or any Work Order shall act only to provide illustrations or descriptions of Services to be provided, and shall not act to modify this Agreement or provide binding contractual language between the parties. Kimcox shall not be bound by any agents’ or employees’ representations, promises or inducements not explicitly set forth herein.
37) Force Majeure. Kimcox shall not be liable to Client for delays or failures to perform its obligations under this Agreement or any Work Order because of circumstances beyond its reasonable control. Such circumstances include, but shall not be limited to, any acts or omissions of any governmental authority, natural disaster, act of a public enemy, acts of terrorism, riot, sabotage, disputes or differences with workmen, power failure, communications delays/outages, delays in transportation or deliveries of supplies or materials, acts of God, or any other events beyond the reasonable control of Kimcox.
38) Non-Solicitation. Client acknowledges and agrees that during the term of this Agreement and for a period of one (1) year following the termination of this Agreement, Client will not, individually or in conjunction with others, directly or indirectly solicit, induce or influence any of Kimcox’s employees or subcontractors to discontinue or reduce the scope of their business relationship with Kimcox, or recruit, solicit or otherwise influence any employee or agent of Kimcox to discontinue such employment or agency relationship with Kimcox. In the event that Client violates the terms of the restrictive covenants in this Agreement, the parties acknowledge and agree that the damages to Kimcox would be difficult or impracticable to determine, and agree that in such event, as Kimcox’s sole and exclusive remedy therefore, Client shall pay Kimcox as liquidated damages and not as a penalty an amount equal to fifty percent (50%) percent of that employee or subcontractor’s first year of base salary or base fees with Client (including any signing bonus).
39) Independent Contractor. Each party is an independent contractor of the other, and neither is an employee or partner of the other.
40) Subcontractors. Kimcox may subcontract part or all of the Services to one or more third parties provided, however that Kimcox shall be responsible for, and shall guarantee, all work performed by any Kimcox-designated subcontractor as if Kimcox performed such work itself. Notwithstanding the foregoing, Kimcox shall not delegate or subcontract any Services that are expressly designated as being non-delegable by Client on a Work Order.
41) Counterparts. The parties may execute and deliver this Agreement and any Work Order in any number of counterparts, each of which shall be deemed an original and all of which, when taken together, shall be deemed to be one agreement. Each party acknowledges and agrees that this Agreement is intended to be executed and transmitted to the other party via electronic means. Accordingly, a party may execute and deliver this Agreement (or any Work Order) electronically (e.g., by digital signature and/or electronic reproduction of a handwritten signature), and the receiving party shall be entitled to rely upon the apparent integrity and authenticity of such signature for all purposes.