Abacus Balance Terms & Conditions of Service
The scope of services subject to these Terms and Conditions (“Services”) are exclusively those that Abacus Data Systems, Inc. (“Abacus”) provides to Client in direct connection with Abacus Balance bookkeeping services. These terms and conditions apply to all Service Orders executed by Client for Abacus Balance (which are incorporated by reference into the Terms and Conditions).
1. Abacus Balance – In any Service Order executed by Client and herein, “Abacus Balance” and/or “Balance” refers generally to bookkeeping service provided by Abacus, as more specifically defined by the plan selected by Client in the Service Order executed by Client. REGARDLESS OF THE CIRCUMSTANCE OR BALANCE PLAN SELECTED BY CLIENT, ABACUS WILL NOT PROVIDE CLIENT TAX ADVICE OF ANY KIND AND WILL NOT FILE ANY GOVERNMENT FILINGS OF ANY KIND ON BEHALF OF THE CLIENT.
2. Balance Plans – Abacus offers three packages of Balance (Balance 100, Balance 300 and Balance 500) that are billed on a monthly basis, and are herein after referred to as a “Recurring Fee Package.” All Recurring Fee Packages include the preparation of Financial Reports (Balance Sheet, Profit and Loss, Accounts Receivable/Accounts Payable Aging, Trial Balance, Owner Contribution/Distribution Detail, and GL Detail Reports). In addition to the Financial Reports, Clients that purchase Balance 100 receive monthly reconciliation of up to 100 banking and/or credit card transactions per month, and monthly checking account recording and expense allocation for one checking or credit card account. In addition to the Financial Reports, Client’s that purchase Balance 300 receive monthly transaction entry, allocation, and reconciliation of up to 300 banking, credit card and/or trust transactions per month for one checking account, one credit card, and one trust account. In addition to the Financial Reports, Clients that purchase Balance 500 receive monthly transaction entry, allocation, and reconciliation of up to 500 banking, credit card and/or trust transactions per month for three bank accounts (any combination of checking, savings, payroll or money market), three business credit card accounts, and one trust account. Client shall have 10 days from receiving the Financial Reports to provide comments or request changes. After the expiration of the 10 days, any adjustments, corrections or changes must be performed as part of an Hourly Fee Package (as defined below). Likewise, for all Recurring Fee Packages, Abacus will provide the services applicable to the chosen plan for the current accounting month. Any services to be done related to prior periods (regardless of whether Client paid for Balance during the applicable prior period(s)) will require purchase of an Hourly Fee Package (as defined below). For all Recurring Fee Packages, if Client exceeds the allotted number of transactions for a particular month, Abacus will bill Client at $97 an hour to complete the Balance services related to the additional transactions.
Abacus also offers two packages of Balance (Balance Trust and Balance Infinity) that are billed on an hourly basis, and are hereinafter referred to as an “Hourly Fee Package.” All Hourly Fee Packages are billed at $97 an hour for work performed by Abacus. For Abacus Trust, Abacus will perform, as needed and requested by Client: trust account cleanup, entry of trust account records; reconciliation of trust account activity; and, copies of Client’s Trust Ledger and Trust Liability Ledger. For Abacus Infinity, Abacus will perform, as needed and requested by Client: bookkeeping cleanup; cash flow statement preparation; projections and budget preparation; bank or accounting audit guidance; and, supplementary bookkeeping and income/expense tracking related projects. Client hereby acknowledges that all hours Client has purchased as part of an Hourly Fee Package shall expire on the year anniversary of when those particular hours were purchased, and all fees paid for such hours are non-refundable.
3. Service Fees and Invoicing – To the extent Client selected a Recurring Fee Package, Client agrees to pay Abacus the Set Up Fee and Monthly Recurring Charges (“MRC”) associated with Balance as set forth in the applicable Service Order Form together with any taxes payable by Client that are required to be collected by Abacus pursuant to any applicable law. Following the payment of the Set Up Fee, with respect to any given month, Abacus will not commence providing the services governed by these Terms and Conditions until Abacus has received payment of the MRC for Balance for that particular month. Client authorizes Abacus to automatically bill the Client’s credit card each month for the balance due. All payments made by Client to Abacus for a Recurring Fee Package are non-refundable. Abacus may be required to charge sales tax on any and all charges for Balance. Any such taxes will be in addition to the amounts charged for such services.
To the extent Client selected an Hourly Fee Package, Client must pay Abacus in advance of it performing any Balance services an amount equal to the estimated number to hours to complete the requested services times the hourly rate.
To the extent that Abacus performs Balance services that Client has not previously paid for but has requested, Abacus will invoice Client for such services and Client agrees to pay the invoiced amount. Client can purchase blocks of Balance hours in advance that can be applied to either Balance Trust or Balance Infinity services.
Client acknowledges that if Client fails to attend a scheduled appointment without providing Abacus with notice at least 24 hours prior to the scheduled appointment time, Abacus will charge Client the equivalent of one hour of Balance hourly services time. If such an event occurs and Client does not have any Balance hours in its account, Client’s credit card on file with Abacus will be charged $97.
4. Term – To the extent Client selected a Recurring Fee Package, the term of the agreement commences on the date the Service Order is executed by Client, and shall continue for the minimum term set forth in the Service Order executed by Client, contingent upon Client timely paying the Start Up Fee and that month’s MRC.
5. Termination – To the extent Client selected a Recurring Fee Package, either party may terminate the agreement without cause by providing 30 days written notice to the other party. Where Client terminates Abacus 100, 300 or 500 prior to the expiration of the term, Client shall pay Abacus the Early Termination Fee, which shall be equal to 50% of the monthly charge set forth on the Service Order Form times the number of months remaining on the term, due and payable as of the date of early termination.
6. Customer Service – Client can reach Abacus’ Balance Customer Support by calling (858) 795-1794 or via e-mail at firstname.lastname@example.org.
7. Confidentiality – Abacus warrants that it will take all reasonable efforts to maintain the confidential nature of Client's data and unless required by law will not knowingly disclose the data or its contents to third parties without the Client’s express written consent. Abacus will provide Client notice of any unauthorized third party access to Client’s confidential information of which Abacus becomes aware.
8. Client Responsibilities – For all Balance Packages; Client acknowledges that in order for Abacus to complete its obligations, Client must provide Abacus with continuous and uninterrupted access to Client’s Abacus Accounting program. Client further agrees to supply Abacus all information, materials, data, and documents necessary or advisable to properly perform the Services in such form, format, or media as Abacus may reasonably request, and to answer any inquires in connection therewith. Client hereby acknowledges that Abacus’ obligation to provide Client with Financial Reports or other deliverables is contingent upon Client timely and adequately providing Abacus will any such requested data or account information. Client agrees that Abacus can rely on the accuracy and truthfulness of the information contained in Client’s accounting software or provided by the Client to Abacus for performance of the Services, and Abacus will not be liable for any damages incurred by the Client as a result of providing Abacus with inaccurate or untimely information.
9. Relation of Parties – The performance by Abacus of its duties and obligations under the Terms and Conditions will be that of a service provider, and nothing herein will create or imply an employment or agency relationship between Abacus and Client, nor will the Terms and Conditions be deemed to create a partnership or joint venture between Abacus and Client.
10. Warranty –Abacus warrants that all services covered by these Terms and Conditions shall be performed in a professional manner. Client acknowledges that Abacus’ ability to properly perform the services covered by these Terms and Conditions is contingent on Client timely providing Abacus with accurate and up to date information as requested by Abacus, as well as allowing Abacus to access Client’s accounting software at Abacus’ convenience. Client’s failure to timely provide any information requested by Abacus absolves Abacus of any obligation to perform the portion of the Balance services that the requested information is applicable to.
THIS WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY ORAL OR WRITTEN REPRESENTATIONS, PROPOSALS OR STATEMENTS MADE ON OR PRIOR TO THE EFFECTIVE DATE OF ANY AGREEMENT BETWEEN CLIENT AND ABACUS.
11. Limitation of Liability – LIMITATION OF LIABILITY – NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, LOSS OF BUSINESS OPPORTUNITY, BUSINESS INTERRUPTION, LOSS OF GOOD WILL, DAMAGE TO BUSINESS REPUTATION, LOSS OF BUSINESS INFORMATION, WORK STOPPAGE, LOSS OF DATA, COMPUTER FAILURE OR MALFUNCTION, OR OTHER SUCH PECUNIARY LOSS), WHETHER UNDER A THEORY OF CONTRACT, WARRANTY, TORT, OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL ABACUS’ TOTAL AGGREGATE AND CUMULATIVE LIABILITY TO CLIENT FOR ANY AND ALL CLAIMS OF ANY KIND ARISING AS A RESULT OF OR RELATED TO THE SERVICE COVERED BY THESE TERMS AND CONDITIONS EXCEED THE AMOUNT OF FEES ACTUALLY PAID (IF ANY) BY CLIENT FOR THE SERVICE GIVING RISE TO THE CLAIM IN THE THREE MONTHS PRECEDING THE CLAIM. LIKEWISE, CLIENT’S TOTAL AGGREGATE AND CUMULATIVE LIABILITY TO ABACUS FOR CLAIMS ARISING OUT OF THE SERVICES COVERED BY THESE TERMS AND CONDITIONS SHALL NOT EXCEED THE EARLY TERMINATION FEE (AS DEFINED IN SECTION 5). THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT THE POTENTIAL LIABILITY OF THE PARTIES ARISING FROM THIS AGREEMENT. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN THIS SECTION ARE INTEGRAL TO THE AMOUNT OF FEES CHARGED IN CONNECTION WITH MAKING THE SERVICE AVAILABLE TO CLIENT AND THAT, WERE ABACUS TO ASSUME ANY FURTHER LIABILITY OTHER THAN SET FORTH HEREIN, SUCH FEES WOULD OF NECESSITY BE SET SUBSTANTIALLY HIGHER.
12. Indemnification – Client shall fully indemnify, hold harmless and defend (collectively “indemnify” and “indemnification”) Abacus and its directors, officers, employees, agents, stock holders and affiliates (collectively, “Indemnified Parties") from and against all claims demands, actions, suits, damages, liabilities, losses, settlements, judgments, costs and expenses (including but not limited to reasonable attorney’s fees and costs), whether or not involving a third party claim, which arises out of or relate to (1) any breach of any representation or warranty of Client contained in these Terms and Conditions, and (2) any breach or violation of any covenant or other obligation or duty of Client under these Terms and Conditions or under applicable law, in each case whether or not caused by the negligence of Abacus or any other Indemnified Party and whether or not the relevant claim has merit.
13. Severability – If any part or parts of these Terms and Conditions, or corresponding Proposal, Service Order or SOW executed by Client or any future modifications are held invalid by a court of competent jurisdiction, the remaining parts of the these Terms and Conditions, or corresponding Proposal, Service Order or SOW executed by Client or modifications will continue to be valid and enforceable.
14. Waiver – The waiver by either party of a breach or default in any of the provisions of Terms and Conditions, or corresponding Service Order executed by Client shall not be construed as a waiver of any succeeding breach of the same or other provisions; nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that has or may have hereunder operate as a waiver of any breach or default by the other party.
15. Integration – These Terms and Conditions and the corresponding Service Order Form(s) executed by Client (which is incorporated by reference) set forth the entire agreement relating to the subject matter hereof and supersedes all prior agreements, discussions and understandings between them, whether oral or written, relating to the subject matter hereof.
16. Notices – All notices to Client under this Agreement will be deemed given when delivered via e-mail to the address set forth in the Service Order. All notices to Abacus under this Agreement will be deemed given when delivered via certified mail to:
Chief Executive Officer
Abacus Data Systems, Inc.
9171 Towne Centre Dr. Suite 200
San Diego, CA 92122
17. Governing Law – These Terms and Conditions and/or any corresponding Service Order executed by Client shall be construed under the laws of the State of California regardless of conflict of law provisions. Client and Abacus irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts in San Diego County, California for all disputes arising out of or relating to these Terms and Conditions, any corresponding Service Order executed by Client and/or the services provided by Abacus for Client that are subject to these Terms and Conditions. Neither party will bring a legal action arising out of or related to these Terms and Conditions, any corresponding Service Order executed by Client and/or the services provided by Abacus for Client that are subject to these Terms and Conditions more than two years after the cause of action arose. Client and Abacus further agree that as a condition precedent to instituting any legal action, the parties must participate in a non-binding mediation in San Diego, California before a neutral from JAMS, with the parties equally splitting the costs of that mediation. If the parties cannot agree on a JAMS neutral, the neutral shall be selected by JAMS at its sole discretion. The mediation process shall be initiated by the aggrieved party submitting the case for mediation to JAMS directly, after providing the other party with notice of its intent to institute mediation.
18. Prevailing Party – In the event of any litigation arising out of or related to these Terms and Conditions and/or corresponding Service Order Form or Service Order Addendum (if any) affirmatively accepted by Client, the prevailing party shall be entitled to recover from the non-prevailing party all costs and expenses associated with such proceedings, including reasonable attorney’s fees. For purposes of this provision, if a matter is filed in any venue other than the state or federal courts in San Diego County, California and the matter is dismissed for improper venue, the party that did not file the action shall be deemed the prevailing party in that action.
19. Updates to Terms and Conditions – Abacus reserves the right to routinely update, amend or change these Terms and Conditions. At least 30 days prior to the effective date, Abacus will notify Client by e-mail of such changes, and a new Terms and Conditions document will be posted at www.abacuslaw.com/Balance. Client’s continued acceptance of Balance services after the 30th day will serve as consent to the changed terms.
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