Abacus Billing Terms & Conditions of Service
The scope of services subject to these Terms and Conditions are exclusively those that Abacus Data Systems, Inc. (“Abacus”) provides to Client in direct connection with Abacus Billing bill preparation services. These terms and conditions apply to all Service Orders executed by Client for Abacus Billing (which are incorporated by reference into the Terms and Conditions).
1. Abacus Billing – In any Service Order executed by Client and herein, “Abacus Billing” and/or “Billing” refers generally to the client bill preparation service provided by Abacus, as more specifically defined by the specific Billing package selected by Client in the Service Order executed by Client. All Billing packages (as set forth below) support only the following Billing arrangements: Hourly; Flat Fee; Monthly Fee; Minimum Fee and Contingency. None of the Billing packages set forth below support split billing, which can be added as a separate cost item.
2. Definitions – In describing the services offered in any of the Billing Packages, use of the following tasks identified in Paragraph 3 below shall mean:
A. “Prepare Client Prebills” means that for each billing cycle; Abacus shall prepare Client’s Prebills, and save the prepared Prebills in PDF format in a designated location on Client’s local computer or network.
B. “Edit Reviewed Draft Statements” means that for each billing cycle; Abacus shall make the modifications to the Prebills requested by Client from a spreadsheet prepared by Client, and saving the edited Prebills in PDF format in the same designated location where the original Prebills for that billing cycle were
C. “Prepare Final Billing” means that for each billing cycle; Abacus shall make additional modifications to the edited Prebills requested by Client in a spreadsheet prepared by Client, and save Client’s final bills for that cycle in PDF format in the same designated location where the original and edited Prebills were
D. “Payment Processing” means that for each billing cycle; Abacus shall ensure that all payments received by Client that are identified on a spreadsheet generated by Client are properly inserted, posted in Client’s Abacus Accounting program, and that such payments are reflected on Client’s Final Bills for that billing
E. “Monthly Receivable Reports” means that for each billing cycle; Abacus shall prepare an Accounts Receivable Report and an Accounts Receivable Aging Report, and save those reports in a designated location on Client’s local computer or
F. “Monthly Productivity Reports” means that for each billing cycle; Abacus shall prepare a Work in Process – Aged, Work in Process – Summary, and Work in Process – Summary with Prior Balance, and save those reports in a designated location on Client’s local computer or
G. “Monthly Billing Reports” means that for each billing cycle; Abacus shall prepare a Billed & Unbilled Hours – By Matter report and a Billed/Paid Fees – Detail report, and save those reports in a designated location on Client’s local computer or
H. “Monthly General Ledger Report” means that for each billing cycle; Abacus shall prepare a Daily Posted Cash Receipts (Operating) report, and save that report in a designated location on Client’s local computer or
I. “Consolidate Billing for Clients with Multiple Matters” means that for each billing cycle; Abacus shall prepare a cover page used to consolidate all combined matters for particular clients of the Client that have multiple matters, and save those letters in a designated location on Client’s local computer or
J. “Post Trust to Matters and Bills” means that for each billing cycle; Abacus shall apply trust transfers during the billing cycle to Client’s bills as applicable based on a spreadsheet provided by Client, and post the Trust transfers to the Operating account in Client’s Abacus Billing
K. “Monthly Trust Reports” means that for each billing cycle, Abacus shall prepare a Cash Disbursements Listing report and a Trust Reports – Detail report, and save those reports in a designated location on Client’s local computer or
L. “Generate LEDES Bills” means that for each billing cycle, Abacus shall prepare Legal Electronic Data Exchange Standard (“LEDES”) bills for client, and save those bills in a designated location on Client’s local computer or
M. “Monthly Timekeeper Reports” means that for each billing cycle, Abacus shall prepare a Timekeeper Cash Receipt report and a Timekeeper Performance Summary report, and save those reports in a designated location on Client’s local computer or
N. “Fee Sharing Set Up” means that for each billing cycle, Abacus will set up all necessary Fee Sharing relationships in Client’s Abacus Accounting
O. “Rate Schedules” means that for each billing cycle, Abacus will prepare a Rate Schedule for Client from information provided by Client.
3. Scope of Billing Packages – Abacus offers three packages of Billing (Billing Standard, Billing Enhanced, and Billing Premium) that are billed on a monthly basis in amount identified on the Service Order Form as a “Monthly Recurring Fee” or “MRC”, are herein after referred to as a “Recurring Fee Package.”, which are described in more detail below. The following defines the scope of services provided in each of the Recurring Fee
A. Billing Standard – Where Client selects Billing Standard; Abacus shall allocate up to 4 hours of a Billing professional’s time per month to complete the following tasks: Prepare Client Prebills, Edit Reviewed Draft Statements, Prepare Final Billing, Payment Processing, Monthly Receivable Reports, Monthly Productivity Reports, Monthly Billing Reports, Monthly General Ledger Report, and Consolidate Billing for Clients with Multiple Matters. Tasks that are defined in Paragraph 2 above but are not included in this list, are not included in Billing Standard. To the extent that it takes Abacus more than 4 hours to complete these tasks in any given month, Client shall be billed at a rate of $97 an hour for such additional work. If Client maintains a client trust account, Client will not be eligible to select Billing
B. Billing Enhanced – Where Client selects Billing Enhanced; Abacus shall allocate up to 7 hours of a Billing professional’s time to complete the following tasks: All tasks provided as part of Billing Standard, plus Post Trust to Matters and Bills, and Monthly Trust Reports. Tasks that are defined in Paragraph 2 above but are not included in this list, are not included in Billing Premium. To the extent that it takes Abacus more than 7 hours to complete these tasks in any given month, Client shall be billed at a rate of $97 an hour for such additional
C. Billing Premium – Where Client selects Billing Premium; Abacus shall allocate up to 9 hours of a Billing professional’s time per month to complete the following tasks: All tasks provided as part of Billing Enhanced, plus Generate LEDES Bills, Monthly Timekeeper Reports, Fee Sharing Set Up, and Rate Schedules. To the extent that it takes Abacus more than 9 hours to complete these tasks in any given month, Client shall be billed at a rate of $97 an hour for such additional work.
Abacus also offers a Billing package (Billing Infinity) that is billed at $97 an hour for work performed by Abacus. Where Client selects Billing Infinity, Abacus will perform any combinations of tasks selected by Client in writing that would be available to a Client that selected Billing Premium and/or tasks associated with Setup (as set forth in more detail in Paragraph 5 below), the exact scope of which shall be confirmed in writing. Client hereby acknowledges that all hours Client has purchased for Billing Infinity shall expire on the year anniversary of when those particular hours were purchased, and all fees paid for such hours are non-refundable.
4. Excluded Services from Billing Packages – Regardless of the Billing package selected by Client; Abacus shall not perform any of the following: the delivering of the bills prepared by Abacus to Client’s clients or third party delivery services, the preparation of Client’s payroll, and the balancing and/or maintenance of any of Client’s accounts, be it savings, checking, trust or otherwise. Likewise, Abacus shall not be obligated under these Terms and Conditions (regardless of the Billing package selected by Client) to address issues with Abacus Accounting caused by a software malfunction (hereinafter referred to as “System Related Error”) or an error caused by the Client, its computer(s), network, server(s), connectivity or third party software (hereinafter referred to as “User Error”), which are governed by the Abacus End User License Agreement set forth at www.abacuslaw.com/eula. In the event that an Abacus Billing Professional does spend time addressing either a System Related Error or a User Error, that time will be considered part of the allocated hours for the particular Billing Package selected by Client to the extent such hours have not been expended, in which case Client shall be billed at a rate of $97 an hour for such additional work.
5. Setup – After Client has purchased a Recurring Fee Package, Abacus shall (to the extent not already done) perform the following Setup tasks based on the input and guidance of Client: ensure Client’s Company Preferences in Abacus Accounting are properly configured (this does not include inputting or verifying credit card information of Client’s clients); Client’s workstation options are setup to maximize billing efficiency; format Timekeeper divisions, titles and codes with the appropriate hourly rates (as supplied by Client); verify default configuration for New Matters; modify Chart of Accounts to match Client’s preferences; setup billing preferences to ensure that Client’s bills are formatted as Client desires.. The following tasks are specifically excluded from the Setup: setting up alias billing accounts; setting up split billing for particular matters; and modification of the existing configuration for pre-existing matters.
6. 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.
7. Client Responsibilities – For all Billing 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 agrees that Abacus can rely on the accuracy and truthfulness of the information contained in Client’s billing 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.
8. Billing Service Timeframe – As used in a Service Order Form, “Billing Date” shall mean the specific date on which Abacus will deliver to Client the final bills that Abacus prepared for Client for a particular month. In the event that the Billing Date falls on a non-business day in a particular month, Abacus will deliver the final bills to Client on the next business day. At least 6 business days before the Billing Date, Client must provide Abacus with a list of client payments, trust monies, any specific criteria for running bills, ticket changes or costs adjustments needed by Client (if any). At least 5 business days before the Billing Date, Client must provide Abacus with a spreadsheet containing the information necessary to run the Initial Prebills. At least 3 business days before the Billing Date, Client must provide Abacus will all requested changes to the initial Prebills; At least 1 business day before the Billing Date, Client must provide Abacus with all requested changes to the second set of Prebills. Client’s failure to timely provide requested information or provide feedback requested by Abacus will result in delays to this timeframe.
9. Service Fees and Invoicing – Where Client selects a Recurring Billing Packages, Client agrees to pay Abacus the Setup Fee and Monthly Recurring Charges associated with Billing 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 Setup 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 Monthly Recurring Charge for Billing in that particular month. Client authorizes Abacus to automatically bill the Client’s credit card each month for the balance due in advance of Abacus performing work related to the Service. Once Abacus completes the Billing services for a particular month, Client authorizes Abacus to automatically bill Client’s credit card for any time Abacus expended in completing the Billing services that month is in excess of the allocated hours for the particular Billing Package selected by Client.
Where Client selects Billing Infinity, Client must pay Abacus in advance of it performing any task selected by Client an amount equal to the estimated number to hours to complete the requested services times the hourly rate. Once Abacus completes the Billing Infinity services for a particular month, Client authorizes Abacus to automatically bill Client’s credit card for any time Abacus expended in completing the Billing services that month that is in excess of the estimated amount that was prepaid by the Client.
All payments made by Client to Abacus for a Billing Package (including Setup Fees) are non-refundable. Abacus may be required to charge sales tax on any and all charges for Billing. Any such taxes will be in addition to the amounts charged for such 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 Billing hourly services time. If such an event occurs and Client does not have any Billing hours in its account, Client’s credit card or ACH on file with Abacus will be charged $97.
10. 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.
11. 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 Billing Standard, Enhanced, or Premium 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.
12. Customer Service – Client can receive customer support for any Billing Package by calling (858) 795-1788 or via e-mail firstname.lastname@example.org. All issues relating the Abacus Accounting should be addressed to AbacusLaw Customer Support at (800) 488-3334 or via e-mail at email@example.com.
13. 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.
14. 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 billing 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 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.
15. 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.
16. 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.
17. Severability – If any part or parts of these Terms and Conditions, or corresponding Service Order 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 Service Order or modifications will continue to be valid and enforceable.
18. 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.
19. Integration – These Terms and Conditions and the corresponding Service Order Form 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.
20. 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 U.S. mail to:
Professional Services Manager
Abacus Data Systems, Inc.
9171 Towne Centre Dr. Suite 200
San Diego, CA 92122
21. 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.
22. Prevailing Party – In the event of any litigation arising out of or related to these Terms and Conditions and/or any corresponding Service Order executed 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.
23. 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/Billing. Client’s continued acceptance of Billing services after the 30th day will serve as consent to the changed terms.
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