Terms of service
Last updated 14 October 2022; replaces prior versions in their entirety.
These Terms and Conditions apply to all work provided by Jessica Kinder trading as JK Bookkeeping.
If you have any questions, please email accounts@jessicakinder.com or call 0422 940 851.
DEFINITIONS
The following words have these meanings in this Agreement unless the contrary intention appears:
Agreement means this Bookkeeping Service Agreement including any annexure and includes the Bookkeeping Proposal.
Bookkeeping Proposal means the proposal between [Bookkeeper Company] and the Client which sets out the Services JK Bookkeeping will provide to the Client and the Fees the Client will pay to JK Bookkeeping for those Services accepted by the Client when the Client signs this Agreement.
Business Day means any day excluding Saturday, Sunday, a public holiday in Western Australia and/or a Commonwealth public holiday.
Client Materials means the materials (such as financial documents and files, receipts and invoices etc.) the Client provides JK Bookkeeping to enable JK Bookkeeping to provide the Services.
Commencement Date means the date JK Bookkeeping accepts a signed Bookkeeping Proposal from the Client and signs and returns a copy of the Bookkeeping Proposal back to the Client.
Confidential Information means any information that is:
(a) Client Materials;
(b) JK Bookkeeping’s Materials;
(c) information, ideas forms, specifications, processes, statements, formulae, trade secrets, drawings and data (and copies and extracts made of or from that information and data) that is not in public domain is considered confidential information; and
(d) confidential by nature, stipulated as confidential or any other information that would be reasonably considered to be confidential due to the value of the information.
Fees means all the fees payable by the Client to JK Bookkeeping under the Bookkeeping Proposal or under this Agreement.
Fee Change means the change in the Fees that may occur on 1 July of each year during the Term.
Intellectual Property Rights means all present and future rights in relation to copyright, trademarks, designs, patents or other proprietary rights, or any rights to registration of such rights, whether created, written, developed or brought into existence by JK Bookkeeping in the provision of the Services and includes JK Bookkeeping’s Materials.
Ongoing Fees means the fees payable by the Client to JK Bookkeeping in an amount and in the manner specified in the Bookkeeping Proposal.
JK Bookkeeping’s Materials means materials which are proprietary to JK Bookkeeping and used by JK Bookkeeping in providing the Services.
Services mean the services provided by JK Bookkeeping to Client as chosen by the Client in the Bookkeeping Proposal. This includes services chosen by the Client under the following headings in the Bookkeeping Proposal: Upfront; Ongoing; Upfront Extras and Ongoing Extras.
Service Materials means the materials JK Bookkeeping provides to the Client which form the delivery of the Services.
Term means the term of this Agreement which commences on the Commencement Date and ends on date that this Agreement is cancelled in accordance with its terms.
Upfront Fee means the one-off fee payable by the Client to JK Bookkeeping at the same time as the Client signs the Bookkeeping Proposal. This fee is specified in the Bookkeeping Proposal.
INTERPRETATION
In this Agreement:
(a) references to a person include an individual, form or a body, whether incorporated or unincorporated;
(b) clause headings are for references only and shall not form part of this Agreement nor used in the interpretation of this Agreement;
(c) if the time of doing an act or thing under this Agreement falls on a day which is not a Business Day, then the time of doing that act or thing shall be deemed to be the next Business Day;
(d) words in the singular include the plural and vice versa in accordance with the context of which that word is
used;
(e) words importing a gender include other genders;
(f) a reference to a clause is a reference to a clause in this Agreement;
(g) a reference to any of the words ‘include’, ‘includes’ and ‘including’ is to be read as if followed by the words “without limitation”
(h) a reference to a statute, ordinance, code or law includes regulations and other instruments under it and any consolidations, amendments, re-enactments or replacements of any of them;
(i) a reference to any party include that party’s executors, administrators, substitutes, successors and permitted assigns; and
(j) each party has participated in the negotiating and drafting of this document and in the event of ambiguity or a question of interpretation arising, this Agreement is to be construed as if the Agreement was drafted jointly.
TERMS AND CONDITIONS
1. THE SERVICES
1.1 The Services and Term
(a) JK Bookkeeping will provide the Services:
(i) to the best of JK Bookkeeping’s ability and knowledge (subject to the content and state of the Client’s Materials);
(ii) in accordance with the Bookkeeping Proposal;
(iii) in compliance with applicable standards, laws and regulations.
(b) JK Bookkeeping is only obligated to deliver the Services to Client after Client has accepted the Bookkeeping Proposal and paid for the Fees set out in the Bookkeeping Proposal.
(c) JK Bookkeeping will issue a request for payment of the Fees after you have accepted the Bookkeeping Proposal. No Services will be delivered and JK Bookkeeping is under no obligation to deliver any Services unless Client has paid the Fees.
(d) If Client and JK Bookkeeping agree for Client to pay the Fees by way of instalment, deferred payment, direct debit or other method other than full payment (Deferred Fee), JK Bookkeeping is entitled to charge Client an administration fee on each occasion the Deferred Fee fails (e.g. where Client has insufficient funds in a bank account and payment is not made on time).
(e) JK Bookkeeping will commence the Services on the date the Client delivers the Client Materials in a form and format acceptable to JK Bookkeeping.
(f) Client must provide JK Bookkeeping with all relevant information for JK Bookkeeping to deliver the Services to Client promptly. JK Bookkeeping is not responsible for, nor is liable for any loss or delay in the provision of the Services where information requested for delivery of the Services has not been provided.
(g) The delivery of all Services involving conversations are recorded for staff training purposes and to improve the Services.
(h) During the supply of the Services, JK Bookkeeping may supply oral, draft or interim advice, reports or presentations but in such circumstances JK Bookkeeping’s written advice or final written report shall take precedence. No reliance should be placed by the Client on any oral, draft or interim advice, reports or presentations.
1.2 Client obligations
(a) The Client is required by law to keep full and accurate records relating to the Client’s taxation affairs and obligations under the laws of Australia.
(b) It is the Client’s obligation to provide JK Bookkeeping with all Client Materials that the Client reasonably expects will be necessary to allow JK Bookkeeping to perform or deliver the Services within a timely manner or as requested. This includes providing accurate and complete responses to questions asked of the Client by JK Bookkeeping within a reasonable timeframe. JK Bookkeeping reserves the right to make a reasonable number of copies of the original Client Materials for JK Bookkeeping’s records.
(c) Inaccurate, incomplete or late information could have a material effect on the provision of the Services and/or JK Bookkeeping’s conclusions and may result in additional Fees. JK Bookkeeping will not verify the underlying accuracy or completeness of information the Client provides to JK Bookkeeping.
(d) The Client is also required to advise JK Bookkeeping on a timely basis if there are any changes to the Client’s circumstances that may be relevant to the performance of the Services. Specifically, if any subsequent event results in the information you provided to JK Bookkeeping being inaccurate, incomplete or misleading, then the Client is obliged to advise JK Bookkeeping as soon as possible. JK Bookkeeping takes no responsibility to the extent that JK Bookkeeping’s advice is inaccurate, incomplete or misleading because it is based on inaccurate, incomplete or misleading information being provided to JK Bookkeeping.
(e) The Client will be taken to have agreed that the performance of the Services is dependent on the performance of your obligations relating to disclosure and record keeping.
(f) The Taxation Administration Act 1953 contains specific provisions that may provide the Client with “safe harbours” from administrative penalties for incorrect or late lodgement of returns if, amongst other things, the Client gives JK Bookkeeping “all relevant taxation information” in a timely. Any failure by the Client to provide all Client Materials may affect the Client’s ability to rely on the “safe harbour” provisions and will be taken into account in determining the extent to which JK Bookkeeping has discharged our obligations to the Client.
(g) The Client acknowledges and agrees JK Bookkeeping uses cloud based solutions and document storage therefore Client Materials maybe stored overseas in jurisdictions with similar privacy laws to Australia. The Client acknowledges and agrees that your personal information may be stored overseas.
1.3 Term
(a) This Agreement will commence on the Commencement Date and end on the date it is cancelled in accordance with its terms.
(b) JK Bookkeeping will deliver the Services in accordance with the Bookkeeping Proposal.
(c) If JK Bookkeeping foresees being unable to deliver the Services in a manner specified in the Bookkeeping Proposal or some other date advised by JK Bookkeeping to the Client, JK Bookkeeping will inform Client of the delay and the reason why the delay has occurred. JK Bookkeeping is not liable for any delay in the provision of the Services for any event that is outside the control of JK Bookkeeping.
(d) JK Bookkeeping shall deliver the Services to Client in accordance with the Bookkeeping Proposal.
1.4 Alterations to the Services
(a) In the delivery of the Services, Client may request variations to the Services which are not covered by the Bookkeeping Proposal inclusions or in other terms of this Agreement.
(b) If Client requires JK Bookkeeping to alter the Services, delay the Services or make any deletion or addition to any of the Services, JK Bookkeeping must first consent to such proposed changes with the Client (including any changes to the Fees payable for the delivery of the Services).
(c) JK Bookkeeping is not obligated to vary the delivery Services in any way until it notifies Client that it has agreed to do so and Client has agreed to pay any variation to the Fees.
(d) Payment of the Fees associated with any variation to the Services pursuant to this clause must be made in accordance with the direction of JK Bookkeeping.
(e) Until such time as JK Bookkeeping agrees to a variation to the Services, JK Bookkeeping will continue to deliver the Services in accordance with the Bookkeeping Proposal and the Client must continue to pay the Fees.
1.5 Warranty for the Services
(a) Because the Services are inherently complex in nature, JK Bookkeeping is unable to provide Client with a guarantee that the Services will be free from minor technical errors (the Errors).
(b) The above Services come with guarantees that cannot be excluded under the Australian Consumer Law.
(c) In the event of a failure in the Services you are entitled to have Errors with the Service rectified in a reasonable time.
(d) Any advice given to the Client by JK Bookkeeping is only an opinion based on JK Bookkeeping’s knowledge of the Client’s particular circumstances. The Client may not disclose in any way, including any publication on any electronic media, to any other party the outcome of any Services or advice or opinion and is not to be relied upon by any other party.
2. PAYMENT FOR SERVICES
2.1 Fees
(a) Client agrees to pay JK Bookkeeping the Fees set out in the Bookkeeping Proposal and in the time and manner set out in the Bookkeeping Proposal or as otherwise notified by JK Bookkeeping to Client.
(b) JK Bookkeeping may cancel this Agreement or suspend the provision of the Services or charge interest on any outstanding Fees, if Client fails to pay for the Services in accordance with the Bookkeeping Proposal.
(c) Where enough of the Client Materials are not provided to JK Bookkeeping:
(i) within 14 business days of a statutory due date, JK Bookkeeping may impose an additional surcharge of 30% in addition to the Ongoing Fees, to complete Services by the due date to ensure the Client’s compliance obligations are met; or
(ii) within a 48-hour timeframe then a surcharge of 50% in addition to the Ongoing Fees will apply to complete the Services by the due date to ensure your compliance obligations are met.
(d) If JK Bookkeeping is required (pursuant to any order, subpoena, directive or other legal or regulatory process) to produce documents and/or information, answer enquiries, attend court or meetings or deal with any similar requests in relation to the Services for, or by, any judicial, regulatory, administrative or similar body or entity (including without limitation, any foreign regulator or similar), the Client shall reimburse us at standard billing rates for JK Bookkeeping’s professional time and expenses, including reasonable legal fees, incurred in dealing with those matters.
2.2 Goods and Services Tax
(a) Unless otherwise stated, all amounts, including out of pocket expenses, expressed and described on or in connection with this Agreement and/or its Bookkeeping Proposal, are listed in Australian Dollars (AUD) and are GST inclusive, being goods and services tax as defined in A New Tax System (Goods and Services Tax) Act 1999, inclusive amounts. Where the services are provided outside Australia, GST is inapplicable.
2.3 Refunds
(a) JK Bookkeeping does not provide a refund of any or all of the Fees because Client has changed their mind or if Client does not believe the Services are being delivered in accordance with this Agreement or if Client does not believe it is getting the value it expects from the Bookkeeping Proposal.
3. INTELLECTUAL PROPERTY
3.1 Intellectual Property Rights
(a) Client recognises that all Intellectual Property is the property of JK Bookkeeping.
(b) JK Bookkeeping warrants that JK Bookkeeping owns the Intellectual Property Rights in the Intellectual Property delivered to Client in the provision of the Services.
(c) The Client will own the documents the subject of providing the Services but JK Bookkeeping owns all other documents produced by JK Bookkeeping in the delivery of the Services.
(d) Title to and all Intellectual Property Rights in, the Client Materials remains at all times with the Client.
(e) Client must maintain copies of all Client Materials provided to JK Bookkeeping. JK Bookkeeping does not make any guarantees that there will be no loss of Client Materials and JK Bookkeeping expressly excludes liability for any loss of Client Materials no matter how caused.
3.2 Use of trademarks, names and brands
Client grants a perpetual, royalty free and worldwide licence to JK Bookkeeping to use its trademark or unregistered mark (that reflect its brand) and/or name for on JK Bookkeeping’s website or other marketing material.
3.3 Licence of Intellectual Property to Client
JK Bookkeeping grants to Client a perpetual, royalty free licence to use the Intellectual Property embodied in the Materials delivered to Client as part of the Services. The licence is limited specifically to the use of the Materials in the business of the Client as at the date of this Agreement.
4. CANCELLATION
4.1 For JK Bookkeeping
(a) JK Bookkeeping may cancel this Agreement by providing thirty days written notice to Client of JK Bookkeeping’s intent to cancel this Agreement.
4.2 For both parties
(a) Either party may cancel this Agreement for a breach by the other (Defaulting Party) of this Agreement by providing fourteen days’ written notice of the breach to the Defaulting Party. During the fourteen-day notice period, the Defaulting Party must remedy the breach.
(b) If Client provides notice of intent to terminate this Agreement, Client may be liable to pay a Cancellation Fee. Cancellation Fee is for the purpose of covering all Services which have been provided at the time the Agreement is terminated, that are above and beyond payments made, up to the provision of the notice to terminate, and for the purpose of covering all Services completed between the provision of the notice to terminate and the cessation of this Agreement.
(c) cancellation under this clause shall be without prejudice to any rights that may have accrued for either party before cancellation and all sums due to JK Bookkeeping shall become payable in full when cancellation takes effect.
5. LIABILITY AND WAIVERS
5.1 Liability
(a) JK Bookkeeping expressly excludes and will have no liability for any statements, representations, guarantees, conditions or warranties, including any which may be implied by statute, common law or custom or which arise from oral or written communications with the Client, which are not expressly contained in this Agreement.
(b) JK Bookkeeping’s liability may be limited by a scheme approved under Professional Standards Legislation.
(c) The inherent nature of delivering services via the internet is that it cannot be controlled. Information delivered between JK Bookkeeping and Client could be intercepted or made inaccurate. As JK Bookkeeping has no control over these matters, JK Bookkeeping is not liable to Client for any loss Client suffers because of these sorts of events.
(d) The total liability of JK Bookkeeping and its personnel to Client for damage, loss or reliance shall be limited to the Fees paid (if any) for Services paid by Client.
(e) Client expressly understands and agrees that JK Bookkeeping and its personnel shall not be liable to Client for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by Client, however caused and under any theory of liability; including, but not limited to: consequential loss, any loss of profit (incurred directly or indirectly), any loss of goodwill or business reputation, death or personal injury and any other intangible loss.
5.2 Waivers
(a) A waiver of any right, power or remedy under this Agreement must be in writing signed by JK Bookkeeping. A waiver is only effective in relation to the particular obligation or breach in respect of which it is given. It is not to be taken as an implied waiver of any other obligation or breach or as an implied waiver of that obligation or breach in relation to any other occasion.
(b) The fact that JK Bookkeeping fails to do or delays in doing, something JK Bookkeeping is entitled to do under this agreement does not amount to a waiver.
5.3 Indemnity
(a) It is possible that a person may make a claim against JK Bookkeeping in connection with the Services because of a breach of this Agreement by the Client. If this happens, JK Bookkeeping may suffer or incur liabilities, claims, costs, losses, fees and expenses, including legal costs (Losses). Client agrees to indemnify JK Bookkeeping against any such Losses, except to the extent a Loss is solely the result of JK Bookkeeping’s own negligence or a breach of this Agreement by JK Bookkeeping.
(b) Examples of where the indemnity will apply is where the Losses are a consequence of any specific instruction or request Client makes, inaccurate information you provide to JK Bookkeeping, or any breach by Client of the terms of this Agreement.
5.4 Financial services licence
(a) JK Bookkeeping does not provide financial services when providing services under this Agreement. Nothing in any Bookkeeping Proposal or this Agreement should be construed as the provision of a financial service.
(b) In particular, JK Bookkeeping may provide an eligible service under reg 7.1.29 of the Corporations Regulations as an integral part of an exempt service that we conduct, but such services are taken not to be financial services.
(c) JK Bookkeeping is not the holder of an Australian financial services licence and rely upon all other available exemptions from the requirement to hold such a licence as in force by ASIC or under the Corporations Regulations from time to time.
6. GENERAL MATTERS
6.1 Communication between Parties
(a) The parties agree on the forms of communication set out in the Bookkeeping Proposal.
(b) If the Client asks JK Bookkeeping to transmit any document to the Client electronically, the Client agrees to release us from any claim you may have as a result of any unauthorised copying, recording, reading or interference with that document after transmission, for any delay or non-delivery of any document and for any damage caused to the Client’s system or any files by the transmission (including by any computer virus).
6.2 Privacy
(a) JK Bookkeeping may collect Personal Information about the Client or the Client’s representatives and others when the Services are provided to the Client. If JK Bookkeeping does, you agree to work with JK Bookkeeping to ensure that both JK Bookkeeping and the Client meet the obligations that each party may have under the Privacy Act 1988 (Cth) (as amended) (Privacy Act). The obligations may include notifying the relevant person to whom the personal information relates who JK Bookkeeping is and how JK Bookkeeping proposes to use their personal information. Where the Client has collected personal information, the Client confirms that it has collected the personal information in accordance with the Privacy Act, that the Client is entitled to provide this personal information to JK Bookkeeping and that JK Bookkeeping may use and disclose the personal information for the purpose/s JK Bookkeeping provides the Services to the Client. JK Bookkeeping will handle personal information in accordance with the Privacy Act.
6.3 Disclosure and Use of Confidential Information
(a) All obligations of confidence set out in this Agreement continue in full force and effect after the cancellation of this Agreement for all Confidential Information, including the customer and/or its agents, employees or servants, without the prior consent of the other Party.
(b) Each party must keep confidential the terms of this Agreement.
(c) This Agreement prohibits the disclosure of Confidential Information by either party with exception to the following circumstances:
(i) the disclosure is to a professional adviser for it to provide advice in relation to matters arising under or in connection with this Agreement;
(ii) the disclosure is required by applicable law or regulation;
(iii) a party is required to disclose it to fulfill an obligation under this Agreement; or
(iv) if the confidential information is already in the public domain at no fault of JK Bookkeeping
6.4 No partnership or agency
(a) Nothing contained or implied in this Agreement will create or constitute, or be deemed to create or constitute, a partnership between the parties. A party must not act, represent or hold itself out as having authority to act as the agent of or in any way bind or commit the other parties to any obligation.
6.5 Governing Law & Jurisdiction
(a) This Agreement is governed by the laws of Western Australia.
(b) In the event of any dispute arising out of or in relation to the Services, Client agrees that the exclusive venue for resolving any dispute shall be in the courts of Australia, situated in Western Australia.
6.6 Severance
(a) Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provisions in any other jurisdiction.
6.7 Force majeure
(a) If the performance of this Agreement by a party, is prevented or restricted by reason of fire, storm, flood, earthquake, war, labour dispute, transportation embargo, law, order, or directive of any government in matters relating to this Agreement, or any other act or condition beyond the reasonable control of that party, then the party is excused from such performance to the extent of the same, but will use their best efforts to avoid or remove the causes of non-performance and to cure and complete performance with the utmost dispatch.
6.8 Assignment and outsourcing
(a) Client agrees for JK Bookkeeping to delegate, assign, novate and/or subcontract any obligations pursuant to this Agreement to any person without Client’s consent.
(b) Some of JK Bookkeeping’s functionality and operations may occur interstate or overseas. Where the outsourced service requires the disclosure of the Client’s personal information or Client’s Materials, we will take all reasonable steps to ensure that such information is secure and is treated in accordance with the Australian Privacy Principles.
6.9 Entire Agreement and Modifications
(a) Both Client and JK Bookkeeping confirm and acknowledge that:
(i) this Agreement shall constitute the entire agreement between JK Bookkeeping and Client and shall supersede and override all previous communications, either oral or written, between the parties;
(ii) no agreement or understanding varying or extending this Agreement shall be binding upon any party unless arising out of the specific provisions of this Agreement; and
(iii) if for whatever reason there is inconsistency between this Agreement and any other agreement, this Agreement shall prevail.