Gnesist Terms of service

Gnesist Terms of service governs your access to and use of the Services and Our Technology.

If you agree to the Agreement on behalf of an entity, you represent that you are authorized to bind that entity; if you sign up for any Services without such authority, you agree that you are accepting the Agreement on your personal behalf.

Please read these terms carefully. Among other things, they require the use of binding individual arbitration to resolve disputes rather than jury trials or class actions. For information about how to opt-out, see Section 11.8 (30-day opt-out period) below.

Services

1.1. We provide bookkeeping Services

Our bookkeeping Services are a solution for bookkeeping and financial organization where we maintain your accounting books based on information provided by you or at your direction. Our bookkeeping Services and any related communications with us are not a substitute for and do not include legal, regulatory, tax, financial, real estate, healthcare, or accounting advice.

1.2. Certain year-end Services

If you are a bookkeeping Services customer for the quarter following your fiscal year end (i.e., your subscription has not been terminated during such period), we may need to perform certain year-end bookkeeping activities at that time as part of your subscription. If you are not a bookkeeping Services customer for the quarter following your fiscal year end, we will not perform year-end bookkeeping activities and will not bear responsibility or liability with respect to any failure to perform year-end bookkeeping activities on your behalf.

1.3. Xero™ Online

We use Xero accounting software to provide the Services. If you do not already have an account, you authorize us to create one for you. Your and our use of Xero Online will be governed by Xero’s Terms of Service and Privacy Notice, and by authorizing us to create an account for you, you agree to Xero’s Terms of Service.

1.4. Sole bookkeeper

This Section applies to the extent that we provide bookkeeping Services to you.

You agree that we will be your sole bookkeeper and in performing such Services we must use, record, classify and reconcile your financial transactions and other data to prepare your books. For example, depending upon the Services we provide, we may have to: (a) import transactions to your books in order to reconcile your bank accounts, (b) categorize transactions in your books to expense accounts and to balance sheet accounts for amortization purposes, and/or (c) sync your payroll data via an integration or otherwise. As a result, once we have performed such tasks, any modifications made by you or on your behalf (for example, by another third-party service provider) to your books may adversely impact Services previously performed by us, causing us to have to re-perform such Services in order to resolve any resulting inconsistencies or inaccuracies or to confirm that there are no such inconsistencies or inaccuracies. If you engage another third-party service provider to make changes to your books, or you otherwise make changes to your books directly, while you have engaged us to provide bookkeeping Services, the parties agree to the following remedies, which shall be at our option and in addition to any rights provided by contract, law or in equity: (i) we may delay bookkeeping deliverables that are on a deadline, (ii) we may charge our standard hourly fees for the additional work required to remediate the situation, and/or (iii) we may terminate your subscription at any time upon written notice without a refund of prepaid fees for unelapsed months of any Services. For the avoidance of doubt, this Section 1.4 does not prevent you from managing accounts payable and/or accounts receivable in Xero, and/or processing payroll through Xero.

1.5 Other Services

Certain Services are governed by additional provisions available at the links below. If your Order Form links to these terms, the additional provisions are incorporated by reference into these terms. If your Order Form links directly to one or more of the additional provisions, the additional provisions incorporate by reference some of these terms, as stated therein.

CFO Services Terms

Strategic consulting Services

We offer strategic financial consulting Services to help you manage and grow your business. The Services we provide to you are specified in your Order Form and may include: monthly engagement, annual budgeting, and assistance in preparing financial materials related to equity financings or other corporate transactions (“CFO Services”). CFO Services (including any communications you may have with our personnel in connection with those Services) are not a substitute for and do not include legal, regulatory, tax, real estate, healthcare or accounting advice. We are not a public accounting firm and are not acting as your agent, broker, fiduciary or investment advisor. CFO Services do not include, and you will not purport to rely on them for: (i) accounting advice, (ii) legal or regulatory advice regarding any of your business practices, including with respect to their appropriateness or legality; or (iii) tax advice or tax return preparation. You should seek the services of a duly licensed professional in connection with any of the foregoing.

We are not responsible for notifying you of the need to prepare or file, or for actually preparing or filing, any notices, applications or documents of any kind to comply with any applicable laws and regulations, or for your compliance with any requirements to qualify or register in any state or other jurisdiction.

Independent consultants

CFO Services provided to you by our employees or agents are fractional services only. We and our employees and agents are independent consultants and have no fiduciary duties to you or your business in the way an in-house CFO would. As such, you agree not to misidentify or misclassify us or our employees or agents as your “CFO” or “Chief Financial Officer” to any third party.

In providing the CFO services, we act at your management’s direction, and all Deliverables are intended solely for your management and not for any third party. Use of any such analyses or deliverables for external purposes is at your discretion and by your management. While we may suggest one or more courses of action, it is the responsibility of your management to determine the appropriate course of action in their business judgment, and we will not have responsibility for the business decisions made by you or for any business outcome.

Tax Services Terms

Thank you for selecting us to assist the Company with tax services.

This Tax Services Agreement is between the entity providing tax services indicated on the Order Form (“we”, “our”, “us”) and each business that subscribes to the Tax Preparation Services or research and development (“R&D”) Credit Services, each as defined below (the “Company”, “you”, “your”). The written order form(s) executed by you and us, including any scope(s) of work appended thereto (the “Order Form”) together with this Tax Services Agreement are referred to herein as the “Agreement”. The Effective Date of this Agreement is the date that the first Order Form has been signed by both you and us. If the Order Form contains additional terms and conditions, then those terms and conditions govern to the extent they conflict with any term and conditions in this Tax Services Agreement.

The purpose of the Agreement is to establish the terms of our engagement and the services we will provide.

IRS Regulation 26 C.F.R. § 301.7216-3 consent to disclosure and use:

Please note that we may perform any or all of our obligations hereunder through a third-party tax service provider or a third-party R&D tax services provider, including in each case its Affiliate(s), some of which may be located outside of the United States (each service provider and its Affiliates, a “Service Provider”) and/or our Affiliate(s), some of which might be located outside of the United States. These Service Providers and/or we and our Affiliates may use subcontractors, some of which may be located outside of the United States. In such event, we will remain liable to you for any nonperformance of the Agreement by us caused by an act or omission of the applicable Service Provider.

You hereby consent to (1) Gnesist.com, Inc. and/or its Affiliate(s) (“Gnesist”) disclosing your information that is required to provide the tax services (this information is referred to in this paragraph as the “required information” and it includes, for example, your financial and business information, entity and ownership information, complete tax return(s) in Gnesist’s possession, and other tax return information communicated through Gnesist’s systems) to us and our Affiliate(s) and/or Service Provider(s), as applicable, (2) our and our Affiliates’ and Service Providers’ use of the required information to provide the tax services, including disclosure to, and use by, subcontractors to provide the tax services, (3) the disclosure and use of the required information outside of the United States to provide the tax services, (4) our disclosing your complete tax return(s) and other tax return information to Gnesist to share it with you through Gnesist’s systems and facilitate completion of your tax return(s), (5) Gnesist using your complete tax return(s) from the tax services, required information, and other tax return information communicated through Gnesist’s systems to perform and improve its services, including, for example, use in bookkeeping and other services and disclosure to potential partners for evaluation purposes and service providers for processing purposes, and (6) disclosure of the required information and tax return information in response to state subpoenas and grand jury subpoenas, subject to notice to you of the same to the extent permitted by law. Contact your Gnesist account manager if you want to limit Gnesist’s disclosures of your complete tax returns. Contact us if you want to limit disclosure of your complete tax return(s) to Gnesist. The tax services are offered on a subscription basis. This consent applies to required information, complete tax returns, and other tax return information communicated through Gnesist’s systems for the initial subscription period and subsequent renewal periods. This consent is valid with respect to Gnesist’s use of your information for services performance and improvement purposes for as long as Gnesist has a business purpose for using the information, and with respect to other uses and disclosures until the statute of limitations to assess any tax by the Internal Revenue Service or other applicable state agency with respect to the applicable tax return has expired.

We shall have in place with the applicable Service Provider at all relevant times a written agreement obligating the applicable Service Provider (including its Affiliates, if and as applicable) to comply with confidentiality obligations protective of all such information substantially similar to those contained in this Agreement.

Tax Preparation Services

If you purchase our tax preparation services (as reflected on your Order Form), we expect to perform the following services (the “Tax Preparation Services”):

Prepare the federal, state(s), and local income tax returns with supporting schedules, based on financial statements that accurately represent the financial activity of the Company provided by the Company.
Any additional tax returns or other government filings for the Company not included in the Order Form must be requested in writing by the Company, and accepted in writing by us, and will then be subject to the terms and conditions of this Agreement.

Except as specifically provided in an Order Form, this engagement and the Tax Preparation Services do not include any returns other than income tax returns (including without limitation sales or use tax returns) and do not extend to determining the Company’s filing requirements or nexus in any particular taxing jurisdiction. We may be able to assist you in the preparation of these filings, if you request. This request must be in writing by the Company, and accepted in writing by us, and will then be deemed added to the Order Form and be subject to this Agreement. Please note there are substantial governmental penalties and personal liability for noncompliance.

We and the Service Provider must use judgment in resolving questions where the tax law is unclear, or where there may be conflicts between the taxing authorities’ interpretations of the law and other supportable positions. We and the Service Provider may apply the “more likely than not” reliance standard when communicating positions to you to resolve such issues in order to avoid penalties that might be assessed against the Service Provider as a return preparer. As a condition of receiving Tax Preparation Services, you agree to honor our reasonable directions and those of the Service Provider regarding disclosure of return positions to avoid or mitigate penalties.

In the course of the Tax Preparation Services, it may come to your or our attention that you may need to file tax returns in one or more additional jurisdictions, including foreign jurisdictions. While we will advise you if this comes to our attention, you remain solely responsible for identifying all filings for which you are seeking Tax Preparation Services, including any liability and additional expenses resulting from choosing not to prepare and file any tax returns, tax forms, and/or supporting schedules (whether recommended by us or not). You must inform us of any new or expanded activities that could trigger filing requirements in additional state(s) or country(ies), such as the acquisition of property or the hiring of employees or use of independent contractors in a new state or country. Activities of a partnership, LLC, trust or other pass-through entity in which you are an owner or beneficiary may also trigger additional state and/or foreign tax filings, so you must inform us if you have acquired an interest in a new pass-through entity over the past year. We will not file any Commerce Department reports or surveys for the Company.

Management is responsible for ensuring proper recording of transactions in the accounts, safeguarding assets, and for the substantial accuracy of the financial records. Because you have final responsibility for the tax returns, you should review them carefully before you sign and file them. Your returns may be audited by the taxing authorities. Any proposed adjustments may be subject to appeal.

Because of the special purpose, nature and format, income tax returns do not constitute financial statements prepared in accordance with generally accepted accounting principles. The tax returns should be used only for income tax purposes and must not be used as a substitute for financial statements.

U.S. citizens and residents and certain nonresidents who have a financial interest in or signature or other authority over any “financial accounts” in a foreign country are required to make a separate filing if the aggregate value of these accounts exceeds $10,000 at any time during the year. Filing requirements also apply to those with direct or indirect control over a foreign or domestic entity with foreign financial accounts, even if the taxpayer does not have foreign financial accounts of its own. We are able to assist you in the preparation of these foreign filings. You are responsible for identifying the need for these filings, and they will be part of the Tax Preparation Services if ordered by you, either initially or by following the process for “as needed” additional services. Please note there are substantial IRS and other governmental penalties for noncompliance.

R&D Credit Services

If you purchase our R&D tax credit services (as reflected on your Order Form), we will provide the following services (“R&D Credit Services”):

Provide guidance to identify and determine which of the Company’s expenses qualify for the R&D tax credit for United States federal income purposes
Calculate the amount of the Company’s qualifying R&D expenses and provide the Company such calculation
Prepare supporting technical and financial substantiation documentation required for IRS Forms 6765 and 8974 (including, but not limited to, documentation of research time and R&D payroll expenses) (together with the calculation of the Company’s qualifying R&D expenses, the “R&D Tax Credit Study”)

We and the Service Provider must use judgment in resolving questions where the tax law is unclear, or where there may be conflicts between the taxing authorities’ interpretations of the law and other supportable positions. We and the Service Provider may apply the “more likely than not” reliance standard to resolve such issues in order to avoid penalties that might be assessed against the Service Provider as a return preparer. As a condition of receiving R&D Credit Services, you agree to honor our reasonable directions and those of the Service Provider regarding disclosure of return positions to avoid or mitigate penalties.

The Company is responsible for ensuring proper recording of transactions in the accounts and for the completeness and substantial accuracy of the financial, personnel and R&D records. Because you have final responsibility for the tax returns, you should review them carefully before you sign and file them.

There is no guarantee that the taxing authorities will accept your R&D activities as qualifying R&D activities or that the tax authorities will approve all of your R&D expenditures as qualifying R&D expenditures. Additionally, your returns may be audited by the taxing authorities. Any proposed adjustments may be subject to appeal.

Records

We or the Service Provider will retain copies of the records you have supplied to us along with work papers for your engagement for a period of seven years from the due date of the applicable return (including extensions). Please notify us within this period if you need copies of any of these materials. After seven years, work papers and engagement files will be destroyed. Your original records will be returned to you at the end of this engagement. Working papers and files that we or the Service Provider maintain are not a substitute for your original records, and you should arrange for secure storage of the originals.

Fees

Our fees for these services are as set forth in the Order Form.

Tax Preparation Services

With respect to Tax Preparation Services, our services include filing the following tax returns for the Company:

One U.S. federal business income tax return
One U.S. state business income tax return, such as Form 100 – Texas Corporation Franchise or Income Tax Return

If you notify us in writing that there are additional state income tax returns, foreign shareholders owning greater than 25%, foreign financial accounts, or changes in accounting methods, additional fees will apply.

You acknowledge that the subscription to Tax Preparation Services does not include a verification of any amounts or values related to crypto assets or transactions provided by you or on your behalf for purposes of completing any tax returns.

If you owe any taxes as determined by the Tax Preparation Services, you authorize us to pay such taxes on your behalf via the payment channel designated by you and made available to us for tax payments. We may reach out to you for an additional authorization above certain amounts.

R&D Credit Services

With respect to R&D Credit Services, we will require an initial payment as set forth in the Order Form. This initial payment is generally non-refundable; however, we will provide a partial or full (as detailed below) refund of your initial payment in the following circumstances:

If, based on the completed R&D Tax Credit Study, the results of our calculations indicate that you are not eligible to claim any R&D tax credits, you will be entitled to a full refund of your initial payment.
If, based on the completed R&D Tax Credit Study, the results of our calculations indicate that the amount of R&D tax credits that you are entitled to claim is less than the amount of your initial payment, you will be entitled to a partial refund equal to the difference between the amount of your initial payment and the amount of R&D tax credits our calculations indicate you are eligible to claim.

There is, however, no guarantee that the taxing authorities will accept your R&D activities as qualifying R&D activities or that the tax authorities will approve all of your R&D expenditures as qualifying R&D expenditures.

1.6 We provide the Services at the direction and for the benefit of your management

We provide the Services at the request of, and under the direction of, your management. Your management is responsible for all management decisions and performing all management functions, including (i) setting policies or accepting policy recommendations; (ii) evaluating the reasonableness of underlying assumptions and the adequacy and results of the Services; and (iii) implementation of any findings or recommendations resulting from the Services. We may act upon, and will not have liability for acting upon, instructions in any form (e.g., electronic, written, oral) so long as we reasonably believe that the instructions were actually given by you or on your behalf. You are responsible for the legality of your instructions to us. We are not obligated to identify or offer additional Services.

We prepare deliverables resulting from the Services (for example, excerpts, models, budgets, confirmations, etc.) for use by your management. In preparing deliverables, you agree that we (a) do not have an obligation to independently verify the accuracy or completeness of any facts provided by you or any third party, and (b) do not undertake to update the deliverable if any facts change, unless the Order Form for the services expressly states otherwise. If you elect to present any deliverable to any third party, such presentation must be made solely by you and not by or on behalf of us, and you agree to remove any references to us from the deliverable and/or from the presentation.

1.7 We need and rely on information from you

Our provision of the Services requires that you provide us access to corporate, financial and related information, information technology systems or services, and/or input from you. You agree to timely provide all such information, access and input and reasonably cooperate with us in our provision of the Services. You agree to provide good faith assumptions and accurate and complete representations, information and data, and you agree that we may assume you have done so without further investigation or verification. You agree that late or insufficient information, access or input from you may cause delay in the performance of the Services, inability to provide the Services, or increase in the amount of our fees.

For the avoidance of doubt, if our performance of the Services is prevented or delayed by any act or omission by you or your agents, vendors, consultants, or employees, we will not be in breach of our obligations or otherwise liable for any related costs, charges, or losses incurred by you.

1.8. Unauthorized uses of the Services

You will only use the Services and Our Technology in accordance with the Gnesist Acceptable Use Policy, which is incorporated in these terms by reference. We may suspend or terminate provision of the Services, in whole or in part, where we reasonably believe that any of our Services are being used in a manner that breaches the Agreement (including the Acceptable Use Policy) or creates risk of personal injury, property damage, or legal liability for us, you or any third party, or may cause us to lose the services of one of our third-party service providers, if any.

1.9. Modifications to the Services

You understand that we may modify, change and/or improve our Services. You agree that we may add or remove functionality or features, and that we may suspend or stop part of the Services altogether. Similarly, because some of our Services are provided by our personnel, we reserve the right to determine from time to time in our sole discretion the personnel assigned to provide the Services to you.

1.10. Gnesist is not a certified public accounting firm

You understand and agree that Gnesist is not a certified public accounting firm and does not provide services that would require a license to practice public accounting. You acknowledge that Gnesist is not a member of the American Institute of Certified Public Accountants (AICPA) and is not governed by any AICPA rules. The Services do not include, and you will not rely on them for: (i) audit, attest, examination, verification, investigation, certification, presentation, or review of financial transactions or accounting records (as such terms are used in the Texas Business and Professions Code Section 5000 et seq. (“Texas Public Accountancy Law”)); (ii) independent advice relating to accounting procedure or to the “recording, presentation, or certification of financial information or data” within the meaning of the Texas Public Accountancy Law; (iii) preparation or certification of reports on audits or examinations of books or records of account, balance sheets, and other financial, accounting and related schedules, exhibits, statements, or reports that are to be used for publication, for the purpose of obtaining credit, for filing with a court of law or with any governmental agency, or for any other purpose, as contemplated by the Texas Public Accountancy Law; (iv) legal or regulatory advice regarding any of your business practices, including with respect to their appropriateness or legality; or (v) unless otherwise expressly included on an Order Form, tax advice or tax return preparation (although we will provide bookkeeping assistance to your tax preparer of choice, and/or you can subscribe for tax Services, which are provided separately from our bookkeeping Services). You should seek the services of a duly licensed professional in connection with any of the foregoing. In particular, in compliance with applicable law and accounting standards regarding auditor independence, we cannot (and do not) make any representation or warranty whether any financial records are compliant with GAAP, IFRS or any other accounting standards or rules.