BETWEEN
(a) SPONDOO ADVISORS LIMTED a company incorporated in Kenya) whose registered office is at 4b Timshack House, Ngong Road, Nairobi, Kenya (trading as and referred to as, “Spondoo”); and
(b) You / Client
1.0 Definitions and interpretation
1. 1. Definitions
(a) Agreement: refers to the Engagement Letter, Client Registration Form and these Terms & Conditions.
(b) Applicable Laws: refers to all applicable Kenyan laws, regulations and codes from time to time in force (including on anti-bribery and corruption requirements, anti-money laundering and Data Protection Laws).
(c) Business Day: a day other than a Saturday, Sunday or public holiday in Kenya when business in Kenya is open for business.
(d) Confidential Information: refers to information in whatever form (including without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located), relating to the business, customers, suppliers, products, affairs and finances of each party for the time being confidential to each party and trade secrets including, without limitation, technical data and know-how relating to the business of each party or any of its or their suppliers, customers, agents, distributors, shareholders, management or business contacts, whether or not such information (if in any other than oral form) is marked confidential.
(e) Data Protection Laws: all legislation and regulatory requirements in force from time to time relating to the use of personal data and the privacy of electronic communications.
(f) Services: as outlined in the Client Registration Form and agreed between the parties.
1.2. Interpretation
(a) Unless the context requires, words in the singular shall include the plural and the plural shall include the singular.
(b) A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision includes any subordinate legislation made from time to time under that statute or statutory provision.
(c) Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(d) A reference to a clause is to the clauses of this Agreement.
(f) A reference to writing or written includes email.
2.0 Commencement
2.1 These Terms & Conditions shall commence on the date that the Client Registration Form has been signed and shall continue, unless terminated in accordance with clause 18.
3.0 Identification and disclosures
3.1. To comply with Applicable Laws, Spondoo is required to obtain documentation on the Client’s identity including its persons of significant control (where appropriate). In the event that the Client fails to provide such documentation to Spondoo upon request, Spondoo will have the right to terminate the contractual relationship with the Client.
3.2. If the Client has any previous history in relation to fraudulent or laundering activity, even if this relates to commercial or non-commercial entities for which we have not been contracted to provide Services, the Client is required to inform Spondoo before Spondoo commences in providing its Services.
3.3. The Client is required to disclose the agent authorisation code which it receives from Kenya Revenue Authority (“KRC”) to Spondoo. This agent authorisation code is necessary for Spondoo to register with KRC as the Client’s agent.
4.0 Services – Financial statements
4.1. Financial statements include statutory accounts for Company Register, corporate tax return, self-assessment personal tax return and any associated statements/returns that Spondoo has agreed to prepare for the Client.
4.2. The Client must provide all information, explanations and documentation available to Spondoo in order for it to prepare the financial statements.
4.3. The Client must ensure that its bookkeeping records are up to date, complete and accurate before Spondoo can prepare the Client’s financial statements, reports or file any relevant return to a third party.
4.4. Spondoo shall act diligently when preparing the financial statements which accurately reflect the information provided by the Client regarding its business affairs. Spondoo shall not be responsible for errors arising from incorrect information supplied by the Client.
5.0 Services – Bookkeeping
5.1. The Client is required to provide all supporting documentation in order for Spondoo to deliver its Services. Spondoo requires digital copies of invoices, bills, receipts and relevant contracts from the Client. It is the Client’s responsibility to ensure that it complies with its record keeping obligations under Applicable Law.
5.2. If the Client’s accounting package with Spondoo includes a specified volume of bookkeeping based on a maximum number of transactions per month, and the number of transactions exceed this specified monthly limit, Spondoo shall add the additional charges in respect of its bookkeeping at it’s standard hourly rate.
5.3. From time to time a director at Spondoo may apply discretion over certain charges or provide a fixed rate price in respect of any catch-up work involved. The price / rate applied in this circumstance shall not be considered to apply to any other work and is limited to the specific work agreed.
5.4. Where the Client is completing their own bookkeeping, Spondoo will try to highlight any issues it finds during the preparation of the Client’s accounts. However, it is ultimately the Client’s responsibility.
6.0 Services – VAT
6.1. VAT returns. Spondoo will prepare the Client’s quarterly VAT returns and provide them to the Client to approach in each instance.
6.2. VAT data filing services. Spondoo will act as a VAT bridging solution, processing data provided by the Client. Spondoo will not review the data for correctness or completeness in line with Applicable Laws; instead, Spondoo will submit the data to KRA.
7.0 Services – Payroll
7.1. Included. Spondoo’s Services include advising on statutory pay, updating electronic tax codes, preparing and submitting, PAYE, NHIF & NSSF calculations, standard management reports, tax filings concerning new starters and leavers, reviewing attachment of earnings and timesheet entries. Spondoo offers the Client’s employees access to an online portal to view and print payslips.
7.2. Additional services. Spondoo also assists with setting up occupational pension schemes, periodic assessments of the workforce into automatic enrolment categories, as well as issuing the statutory communication to the Client’s employees.
7.3. Additional services. Spondoo further provides additional Services upon request for a fee including printed payslips to the Client’s office, client monies payment, PAYE settlement agreements and administering employee holidays.
(a) Client Monies payment – Spondoo offers a third-party payment service for payment of employees’ net pay, tax, NSSF & NHIF remittance due to KRA, employee benefit or pension provider contributions.
(b) Employee holiday administration – Spondoo provides the employee holiday entitlement administration, from simple record keeping of holidays taken and balances due to both contractual and statutory holiday pay calculations. The fee for this Service is dependent on the level of support needed by the Client.
7.4. If the Client requires the additional services outlined in clauses 7.2. and 7.3., it is required to notify Spondoo in writing as such services are not otherwise included.
8.0 Services – Management accounts
8.1. In the event that the Client appoints Spondoo to provide management accounting services, the Client acknowledges that this could be formed from the following components:
(a) Data mapping / analysis – extraction of data from the Client’s accounting reports for representing in a useable format.
(b) Accounting logic – Spondoo investigating and implementing existing and future management accounting methodology for implementation in the accounts.
(c) Checking bookkeeping – Spondoo investigating (at a high level) the general accuracy of the bookkeeping records, while raising any issues with the Client. Where the items are basic/quick to correct, Spondoo will try to make these adjustments within the agreed monthly fee. Where the item/issue involves a great deal of time and work, then Spondoo and the Client shall agree a fee for this work to be completed.
(d) Relevant booking activity – the production of management accounts may include assisting the Client’s existing bookkeeper with items of higher complexity. These items may include balance reconciliations, monitoring / posting journal from management accounting policies and maintenance of a fixed asset register. Spondoo and the Client shall agree the fee before any work commences. It may be required that Spondoo work on the Client’s accounts for a limited period of time before these items can be known; once these items are known and understood, this may result in a revised fee (either up or down).
8.2. Spondoo will not be responsible for presenting incorrect information that is a result of the Client’s incorrect and/or incomplete bookkeeping records.
8.3. Depending on the frequency agreed for the provision of the accounts, Spondoo will agree a cut-off date for which the Client’s bookkeeping records must be closed and complete. Failure to meet this cut-off failure may result in the Client’s management reports being produced late. Any resulting penalties from third parties will be the Client’s to bear and not that of Spondoo.
9.0 Services – Personal tax return
9.1. The Client must respond in good time to any questions raised by Spondoo in respect of the Client’s tax affairs and financial history.
9.2. If the Client believes that there are any relevant questions that have not been asked, the Client must raise this matter with Spondoo to allow Spondoo to make an appropriate judgement.
9.3. The Client must declare all of its sources of income and gains (including Kenya and overseas) and make the appropriate information available to Spondoo.
9.4. The Client is responsible for ensuring that it provides all the relevant information and pays any outstanding fees to Spondoo in good time and before personal tax return deadline.
9.5. Spondoo will act diligence in the preparation of the Client’s personal tax computation and returns. Spondoo will prepare the Client’s returns in good time upon receipt of the necessary information.
9.6. Spondoo is not responsible for the Client providing incorrect information or having incomplete records. Spondoo is also not responsible in the event that the Client has made omissions or supplied incorrect values in previous tax periods.
10.0 Services – Pension scheme
10.1. Spondoo’s pension scheme Services are different to the payroll and auto-enrolment Services that it offers and as referred to in clause 7.
10.2. Spondoo’s pension scheme Services refers to Services supplied to the trustees, administrators and/or sponsors of a Kenyan registered pension scheme.
10.3. Pension scheme Services typically include those relating to pension scheme taxation, technology consultancy, pension administration, fund accounting and relative scheme returns to KRA or to the Pensions Regulator.
10.4. Spondoo prepares returns to both KRA and the Pensions Regulator based on information supplied to it from the Client. Spondoo is not responsible for any incorrect accounting or pension administration requirement records.
11.0 Services – Umbrella company
11.1. Umbrella Services are designed to provide specialist PAYE compliance Services to contractors, personal service companies and employers.
11.2. Spondoo’s model allows for it to operate its umbrella company Services for clients. The only employment rights that pertain to Spondoo are the statutory payments 100% reclaimable from KRC. No other employment rights are provided by Spondoo or its associated businesses to the Client.
11.3. If the Client is an international employer, it understands that there will be delays for overseas bank transfers. All funds must be received in gross in addition to charges incurred by Spondoo from its own banking arrangements.
12.0 Services – Specialist and bespoke support
12.1. Spondoo’s specialist accountancy services include combined accounting, administrative and software development. Due to the bespoke nature of these Services, Spondoo and the Client will discuss these services and agree fees separately.
13.0 Fees, invoicing and payment
13.1. Fees.
(a) Amounts. Spondoo’s fees are based on its understanding of the Client’s business and the workload involved and are outlined in the Engagement Letter and during the completion of the Client Registration Form.
(b) Reduced fees based on annual payment. Spondoo’s accounting and bookkeeping Services are priced as an annual cost per financial period. The Client may choose to pay the entire year in advance before Spondoo completes its work. If the Client chooses to do this, the Client may attract a reduced rate for the year when compared with the monthly charge.
(c) VAT. All fees are excluding VAT which shall be chargeable for the Services.
(d) Prior period work. Where Spondoo notices work is required for a previous period, it will notify the Client and await its instruction on how to proceed. For any work for previous periods, Spondoo shall charge the same rate as the fees outlined in the Engagement Letter for the current period to apply to the previous period. The only exception is if a director of Spondoo determines that the work can be completed at a discounted rate. Spondoo may, in any event, also require payment on account before commencing the work.
(e) Quotes. Any quotes provided by Spondoo are merely an estimate of the work involved and its associated costs. Where it is too complex to estimate fees, Spondoo and the Client shall agree an hourly rate for conducting a particular piece of work.
(f) Fair usage. Spondoo provides Services to small and medium sized businesses. Spondoo provides support, advice and assistance without specified limits where it is considered to be a reasonable level of requests on the time of its team. Where Spondoo considers that the Client is exceeding its fair usage limits, Spondoo will notify the Client and this will involve a revision in the fees to reflect the true cost of the Services being used.
(g) Accounting packages. Spondoo’s accounting packages provide an estimate of the work involved, based on the number of transactions, turnover, foreign/overseas involvements and tax complications that the Client faces. If the Client’s business increases above the thresholds/limits of the specific package that has been agreed with Spondoo, Spondoo may need to increase the monthly fees and shall notify the Client at the earliest opportunity.
The packages within Spondoo’s monthly plans are designed to include the following:
i. preparation and filing of the Client’s year-end accounts and corporation tax returns;
ii. filing of the Client’s annual Annual Return;
iii. provision of quick ad hoc tax advice and support (“quick” refers to no more than ten (10) minutes to answer); and
iv. one (1) online meeting per year – unless specified / agreed via a separate arrangement.
The packages within Spondoo’s monthly plans does not include:
i. advice requiring computations;
ii. additional research from Spondoo’s team;
iii. third-party consultation;
iv. international tax compliance and residency status;
v. questions on tax matters outside of Spondoo’s contractual relationship (e.g., advising on a new business venture that is unrelated to the business for which Spondoo has been appointed for as the accountant by the Client);
vi. mortgage references, letting references and cashflow forecasts;
vii. more than one (1) online meeting per year;
viii. other company secretarial services (such as directorship changes, register address change and Business Registration Service form filings); and
ix. management accounting support. (h) Fee increases. From time to time, Spondoo shall increase its fees to keep up with inflation or increasing costs. Spondoo shall notify the client of its fee increases by providing at least fourteen (14) calendar days’ notice in writing.
13.2. Invoicing. The Client will be invoiced at the start of each month in advance in respect of the work to be conducted in the following calendar month.
13.3. Payment.
(a) Card Payment. Spondoo shall collect its fees by card payment within seven (7) calendar days of the invoice being issued. Where a card payment instruction fails, Spondoo will continue to attempt to collect the monies until the transaction is successful.
(b) Bank transfers. Spondoo may agree with the Client for it to pay via a bank transfer instead of a card payment.
(c) Frequency of payment. If the Client instructs Spondoo part way through its financial year and selects to pay monthly, Spondoo’s first invoice will be in respect of the backdated months since the start of the Client’s financial year. For example if the Client complete the Client Registration Form on 1st February 2020 for Spondoo to complete your accounts with the financial year end of 30th June 2020, the Client’s first invoice and card payment will be for the monthly charge x 7 months for the accounting portion of the package; the 7 months represent the number of months from 1st July 2019 to 31st January 2020.
(d) Late payment of fees. Where fees are paid late as a result of a failed card payment instruction and/or in respect of bank transfers from the Client, Spondoo shall charge an annual interest on the outstanding balance at 4% a year above the Bank of Kenya’s base rate from time to time. Where the Client is in excess of sixty (60) calendar days in making payment, Spondoo may charge a late administration charge of 4000ksh to the Client’s invoice.
(e) Ownership of records. In the event of non-payment of Spondoo’s fees for services rendered, Spondoo may exercise a right of lien over the books and records in its possession and withhold the documents until such time as payment of its invoice is received in full.
13.4. All fees paid are non-refundable including in the event of termination by either party.
14.0 Marketing and publicity
14.1.
Spondoo reserves the rights, for the purpose of promotional activity, training or for similar business purposes to refer to the Client’s name as a client of Spondoo. Spondoo will not disclose any Confidential Information.
15.0 Confidentiality
15.1. Each party undertakes that it shall not at any time during this Agreement with the other party and thereafter disclose to any person any Confidential Information of the other party, except as permitted by clause 15.2.
15.2. Each party may disclose the other party's Confidential Information:
(a) where applicable to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party's obligations under this Agreement. Each party shall procure that its employees, officers, representatives or advisers to whom it discloses the other party's Confidential Information comply with this clause 15;
(b) if it is in the public domain or becomes public knowledge other than as a result of the breach of this Agreement or any other duty of confidentiality relating to the information; and/or
(c) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
15.3. No party shall use any other party's Confidential Information for any purpose other than to perform its obligations under this Agreement.
16.0 Legal compliance, insurance and complaints
16.1. Compliance with Applicable Laws. Each party shall ensure to comply with Applicable Laws at all times.
16.2. Data protection. Each party is considered to be an independent Data Controller as defined in Data Protection Laws. Each party shall ensure to comply with all of their obligations under Data Protection Laws. The Client confirms that it has obtained consent from data subjects (as defined under Data Protection Laws) for any transfers of their personal data (as defined under Data Protection Laws) across borders including to the United States of America, United Kingdom, India and the United Arab Emirates.
16.3. Data retention. It is the Client’s responsibility to retain documents and records relevant to its tax affairs. During the course of Spondoo’s work, Spondoo will only accept documents in electronic format. The Client is required to retain its own documents in order to comply with data retention obligations. Spondoo shall not be responsible for retaining any Client documents beyond the statutory requirements imposed on it.
16.4. Insurance. Spondoo is covered in respect of its professional indemnity insurance, as required under the terms of its practicing license.
16.5. Complaints. If the Client wishes to complain, Spondoo requests that the complaint be submitted by email on complaints@spondoo.ke. A senior member of staff from Spondoo will engage with the Client within seven (7) calendar days.
17.0 Limitation of liability
17.1. Nothing in this Agreement shall limit or exclude the liability of either party for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation; and/or
(c) any matter in respect of which it would be unlawful to exclude or restrict liability.
17.2. Spondoo shall not be liable for special, incidental, consequential, indirect or punitive damages including, but not limited to loss of revenue or profit, loss of anticipated savings, loss of goodwill, injury to reputation, loss of business opportunity, loss of services, unavailability of files, damages or corruption or loss of data.
17.3. Spondoo shall not be liable for any losses or inconvenience caused to the Client due to Spondoo’s compliance with Applicable Laws (especially in respect of anti-money laundering compliance).
17.4. Spondoo shall not take responsibility for any losses, penalties, surcharges, interest or additional tax liabilities due to KRC, Company Register or any third party.
17.5. Subject to clauses 17.1 and 17.2, the total liability of either party arising under this Agreement shall in no event exceed the fees paid over a period of twelve (12) months preceding the claim.
18.0 Termination and consequences
18.1. Without affecting any other right or remedy available to it, either party may terminate this Agreement by providing the other party with sixty (60) calendar days’ notice in writing to the registered address of the other party.
18.2. Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination or expiry. The Client is required to ensure that all outstanding invoices have been settled.
18.3. Any clauses which expressly or by implication have effect after termination shall continue in full force and effect.
19.0 General
19.1. Entire agreement. This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
19.2. No reliance on matters outside of the Agreement. Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
19.3. No partnership or agency between the parties. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
19.4. Variation. No variation of this Agreement shall be effective unless it is in writing and signed by the parties.
19.5. Assignment. Neither party may assign, charge, transfer or deal in any other manner whether in whole or in part with any of its rights and obligations under this Agreement without the prior written consent of the other party.
19.6. No automatic waiver. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
19.7. Severability. If any clause or sub-clause of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant clause or sub-clause shall be deemed deleted. Any modification to or deletion of a clause or sub-clause under this clause shall not affect the validity and enforceability of the rest of this Agreement.
19.8. Notices. A notice given to a party under or in connection with this Agreement shall be in writing and sent to the party at the contact address as otherwise notified in writing to other party at the time upon which this Agreement has been signed. This clause does not apply to the service of any proceedings or other documents in any legal action or any arbitration or other method of dispute resolution and in any of these such situations, notices must be served to a party’s registered address (where applicable).
19.9. Third party rights. No one other than a party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
19.10. Force majeure. Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. If the period of delay or non-performance continues for fourteen (14) calendar days, the party not affected may terminate the Agreement by giving five (5) calendar days’ written notice to the affected party.
19.11. Governing law. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of Kenya.
19.12. Jurisdiction. Each party irrevocably agrees that the courts of Kenya shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
