Date posted: May 26, 2020

Pilot CFO Services Agreement

This Pilot CFO Services Agreement (these “Terms”) is entered into between you and Pilot, Inc. (“Pilot,” “we” and “us”) and governs your use of Pilot’s CFO Services (as defined below). By executing the written order form which references these Terms (the “Order Form”), you agree to be bound by these Terms (together with the Order Form, the “Agreement”). If you are agreeing to these Terms on behalf of an entity, you represent that you have the authority to bind that entity; otherwise, you may not use the CFO Services.

1. CFO Services

1.1 Strategic Consulting Services

Pilot offers 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: CFO engagement, annual budgeting, and fundraising services (collectively, “CFO Services”). CFO Services (including any communications you may have with Pilot personnel in connection with those services) are not a substitute for and do not include legal, tax, real estate, healthcare or accounting advice. Pilot is not a public accounting firm and is 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 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.

1.2 Independent Consultants

CFO Services provided to you by Pilot’s employees or agents are fractional services only. Pilot and its respective employees and agents are independent consultants and have no fiduciary duties to you or your business in the way a full-time CFO would. As such, you agree not to misidentify or misclassify Pilot or any of its employees or agents as your “CFO” or “Chief Financial Officer” to any third party.

1.3 Third Party Sites and Services

You may wish to provide us with certain data that is stored or accessed through a third-party website or service, like Quickbooks Online™, to enable us to provide you with the CFO Services. If you choose to provide us with login credentials or access to your account, such as, through an account name or number, password, answers to security questions, and so forth (collectively, “Login Credentials”), you both (a) give us permission, and a limited power of attorney, to use them to login to these other websites and services and access, transfer, reformat, and manipulate your account on your behalf; and (b) represent to us that you have the authority to give us this permission. We will maintain Login Credentials in encrypted form, and we will only use them as described in these Terms. To the extent you have granted us access to or use of your Customer Data or Login Credentials, for the provision of other services and products by Pilot or its Affiliates to you (such as, for example, our bookkeeping services), then you give us permission to access or use such data or Login Credentials to the extent reasonably necessary to provide the CFO Services.

1.4 Unauthorized use of the CFO Services

You will only use the CFO Services in accordance with these Terms. We may suspend or terminate provision of the CFO Services, in whole or in part, where we believe it is being used in a manner that breaches these Terms or creates risk of personal injury, property damage, or legal liability for Pilot, you or any third party, or may cause Pilot to lose the services of one of our third-party service providers. You represent and warrant that any information you provide to us about your (or, if you are acting on behalf of another person, that person’s) business, products, or services is accurate and complete.

1.5 Modifications to the CFO Services

We are constantly changing and improving our CFO Services. We may add or remove functionality or features, and we may suspend or stop parts of the CFO Services altogether.

1.6 Facilities and Data Transfer

All facilities used to store and process data submitted, stored, sent or received via the CFO Services by you, at your direction, or as part of the CFO Services for you (collectively, “Customer Data”) adhere to reasonable security standards no less protective than the security standards at facilities where Pilot stores and processes its own information of a similar type. As part of providing the CFO Services, we may transfer, store and process Customer Data in the United States. By using the CFO Services, you consent to this transfer, processing and storage of Customer Data.

1.7 Customer Data

CFO Services may be performed in cooperation with you or your employees or agents. You will provide Pilot and its employees or agents with Customer Data and cooperation, resources and support, as reasonably necessary or appropriate for Pilot to perform the CFO Services. You hereby grant us a nonexclusive and royalty-free right and license to use the Customer Data solely for the purpose of performing the CFO Services. You represent and warrant to us that you have the authority, including without limitation any and all necessary consents, to grant this license.

2. Deliverables; Proprietary Rights

2.1 Deliverables

Unless otherwise agreed by the parties in writing and subject to Section 2.2 below, you shall own all right, title and interest (including all intellectual property and other proprietary rights) in and to Deliverables (defined herein) upon payment in full therefor. All Deliverables are works made for hire to the extent allowed by law and, in addition, Pilot makes all assignments to you necessary to accomplish the foregoing ownership. “Deliverable” means any work product that is created, developed or made by Pilot specifically for you, or that is specified in an Order Form, and delivered to you by Pilot during performance of the CFO Services (but expressly not including any Background Materials (as defined below)).

2.2 Background Materials

Pilot (and its licensors, as applicable) shall retain all right, title and interest in and to all Background Materials (including all intellectual property and proprietary rights therein). To the extent that Pilot includes any Background Materials in any Deliverable, then Pilot agrees to grant you, and hereby grants you, a nonexclusive right and license to use such Background Materials internally and solely in connection with, and as incorporated in, the Deliverable. Except for the limited rights and licenses expressly granted hereunder concerning the Background Materials, no other license is granted and no other use is permitted. “Background Materials” means all information, ideas, know-how, processes, software, templates, works of authorships, trade secrets, methods, and technologies, including all intellectual property and other proprietary rights embodied therein, that (a) are owned or developed by Pilot (whether developed by or for Pilot or otherwise acquired from a third party) prior to the performance of CFO Services under this Agreement or separate and apart from the performance of CFO Services under this Agreement, or that are in-licensed by Pilot from a third party, including any changes or extensions thereto or (b) are created or developed by Pilot in performing CFO Services under this Agreement, are generally applicable to the services that Pilot provides, and do not include any of your Customer Data.

2.3 Feedback

As between the parties, you retain all intellectual property rights in your Customer Data, and we retain all intellectual property rights in the CFO Services. You grant us a limited license to use your Customer Data to provide, protect, and improve the CFO Services. We may retain such data in anonymized, de-identified, and aggregated form that is protected by organizational and technical safeguards in order to perform research and development. If you provide us with feedback or suggestions about the CFO Services (“Feedback”), then we may use that information without obligation to you, and you hereby irrevocably assign to us all right, title, and interest in that Feedback.

3. Confidentiality

3.1 Confidential Information.

Confidential Information” means all information a party or its Affiliate (as defined below) discloses to the other party under this Agreement and which is marked as confidential, or which would normally be understood to be confidential under the circumstances. Customer Data is your Confidential Information. Confidential Information shall not include any information that (a) is independently developed by the recipient, (b) is shared with the recipient by a third party without confidentiality obligations, or (c) becomes public through no fault of the recipient.

3.2 Obligations

The recipient shall use the other party’s Confidential Information only to exercise its rights and fulfill its obligations under this Agreement. The recipient shall use reasonable care to protect the other’s Confidential Information against unauthorized disclosure. Each party may disclose Confidential Information to its Affiliates, agents, employees or professional advisors (“Delegates”) who have a need to know such information for the purpose of exercising its rights or fulfilling its obligations under this Agreement, and who have a legal obligation to keep such information confidential. Recipient shall ensure that its Delegates are also subject to the same non-disclosure and use obligations. Upon your request, Pilot will execute a separate agreement reflecting these non-disclosure and confidentiality obligations for your records.

3.3 Disclosure

These Terms shall not prohibit a party from disclosing the other party’s Confidential Information (a) if such disclosure request is compelled or required under law, governmental regulation, court order, subpoena, warrant, governmental regulatory or agency request, or other valid legal authority, legal procedure, or similar process (“Legal Process”), (b) with the other party’s prior written consent, or (c) in connection with enforcing our rights under this Agreement with you. The recipient will use commercially reasonable efforts to notify the other party before disclosing that party’s Confidential Information in accordance with Legal Process, unless (a) giving notice is legally prohibited or (b) the Legal Process relates to exceptional circumstances involving danger of death or serious physical injury. The recipient will reasonably cooperate with the other party’s requests to seek legal protections or oppose disclosure of its Confidential Information.

3.4 Affiliates

Affiliate” means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with a party. “Control” means control of greater than 50% of the voting rights or equity interests of a party.

4. Payment Terms; Fees.

All fees for CFO Services shall be reflected in the Order Form. Unless as otherwise set forth in the Order Form, Pilot will collect payment for the fees automatically via ACH. Fees are exclusive of taxes, which you’re responsible for, if applicable. You hereby authorize Pilot or its payment processor to initiate entries to your business bank checking accounts on file with Pilot (using your business address on file) in order to pay amounts that you owe to Pilot (including for any Renewal Terms as those payments come due), and, if necessary, to initiate adjustments for any transactions credited or debited in error. Pilot may immediately suspend provision of the CFO Services if your account is past due. Except to the extent expressly set forth in this Section, all payments are non-refundable and non-creditable.

5. Term and Termination

5.1 Initial Term

This Agreement is effective on the date you sign an Order Form or you otherwise agree to these Terms (for example, by clicking through an online agreement) (the “Effective Date”). Unless otherwise specified in the Order Form, your initial subscription term will begin at the start date on the Order Form and continue, unless terminated earlier, for the term specified on your Order Form (the “Initial Term”).

5.2 Renewal

Unless as otherwise specified in the Order Form, upon the end of the Initial Term or any Renewal Term, your subscription will automatically renew for the same duration as the Initial Term (each, a “Renewal Term”) unless you give us notice (via [email protected]) at least (a) seven (7) days for monthly or quarterly subscriptions; or (b) thirty (30) days for annual subscriptions, in each case, prior to the end of the then-current Initial Term or Renewal Term, as applicable.

5.3 Termination

We may terminate your CFO Services at any time by providing notice of termination to you via the email address we have on file. In the event we terminate your CFO Services for any reason other than your violation of Section 1.4 (Unauthorized Uses of the CFO Services) or your material breach of this Agreement, we will give you a refund of prepaid fees for unelapsed months of the CFO Services.

5.4 Effects of Termination or Expiration

Upon expiration or termination for any reason, all rights, obligations and licenses of the parties hereunder shall cease, except that (a) your liability to pay for CFO Services performed (and non-cancelable expenses incurred) prior to the termination date shall not be extinguished, and shall become due and payable on the termination date, (b) all other obligations that accrued prior to the effective date of termination and remedies for breach of this Agreement shall survive any termination and (c) the provisions of Sections 2 (Deliverables; Proprietary Rights), 3 (Confidentiality), 4 (Payment Terms; Fees), 6 (Warranties and Disclaimers), 7 (Limitation of Liability), 8 (Indemnification), 9 (Disputes; Class Action Waiver), 10 (Miscellaneous) and this Section 5 shall survive.

6. Warranties and Disclaimers

6.1 Services

Pilot warrants that the CFO Services will be performed in a professional and workmanlike manner. Any warranty claim under these Terms must be made by you in writing within thirty (30) days after performance of the nonconforming CFO Service. Pilot’s sole obligation and your exclusive remedy in respect thereof is to reperform the nonconforming CFO Service (in which case, no refund will be provided) or, at Pilot’s sole discretion, refund you the fees paid for the nonconforming CFO Service, which refund will in no event exceed the greater of (a) the amount you paid for applicable CFO Service prior to the claim or (b) one-hundred (100) U.S. dollars.

6.2 Warranty Disclaimers

EXCEPT AS SPECIFICALLY PROVIDED HEREIN, AND TO THE FULLEST EXTENT PERMITTED BY LAW, PILOT, ITS AFFILIATES, AND ITS AND THEIR SUPPLIERS AND DISTRIBUTORS (THE “PILOT ENTITIES”) MAKE NO WARRANTIES, EITHER EXPRESS OR IMPLIED, ABOUT THE CFO SERVICES OR ANY DELIVERABLES. THE CFO SERVICES AND DELIVERABLES ARE PROVIDED “AS IS.” NO WARRANTY IS MADE THAT THE CFO SERVICES OR DELIVERABLES, OR RESULTS OF USE OF THE CFO SERVICES OR DELIVERABLES WILL MEET YOUR NEEDS OR EXPECTATIONS, THAT THE CFO SERVICES OR DELIVERABLES WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE OR THAT THE RESULTS THAT MAY BE OBTAINED FROM THE CFO SERVICES OR DELIVERABLES WILL BE ACCURATE OR RELIABLE. WE ALSO DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IF THE EXCLUSIONS FOR IMPLIED WARRANTIES DO NOT APPLY TO YOU UNDER APPLICABLE LAW, ANY IMPLIED WARRANTIES ARE LIMITED TO SIXTY (60) DAYS FROM THE DATE OF PURCHASE OR DELIVERY OF THE CFO SERVICE OR DELIVERABLE, WHICHEVER IS SOONER. THE PILOT ENTITIES DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE CFO SERVICES OR DELIVERABLES WILL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS OR LAWS OR REGULATIONS.

7. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ENTIRE LIABILITY OF THE PILOT ENTITIES FOR ALL CLAIMS RELATING TO THE CFO SERVICES, DELIVERABLES AND THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE CFO SERVICES DURING THE TWELVE (12) MONTHS PRIOR TO SUCH CLAIM OR ONE HUNDRED (100) US DOLLARS, WHICHEVER IS GREATER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PILOT ENTITIES ARE NOT LIABLE FOR ANY OF THE FOLLOWING: (A) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES; OR (B) DAMAGES RELATING TO LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFITS. THE ABOVE LIMITATIONS APPLY EVEN IF THE PILOT ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS AGREEMENT SETS FORTH THE ENTIRE LIABILITY OF THE PILOT ENTITIES AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE CFO SERVICES AND DELIVERABLES AND THEIR USE.

8. Indemnification

You shall defend and indemnify the Pilot Entities from and against all damages, losses, liabilities, claims, demands, actions, suits, judgements, settlements, costs and expenses, including all attorneys’ fees, that arise from or relate to: (a) your use of and our provision of the CFO Services or Deliverables (except to the extent arising directly from our willful misconduct or gross negligence), (b) your violation of these Terms, (c) any Customer Data, content, information or materials provided by you, or (d) infringement by you, or any third party using your account or identity in the services, of any intellectual property or other right of any person or entity. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses.

9. Disputes; Class-Action Waiver

9.1 Judicial Forum for Disputes

Except as set forth in Section 9.5 (Arbitration), you and Pilot agree that any and all claims relating to the Agreement, the CFO Services or Deliverables may only be brought in the federal or state courts of San Francisco County, California, subject to the mandatory arbitration provisions below. Both you and Pilot consent to venue and personal jurisdiction in such courts.

9.2 Notice of Disputes

If you have a dispute with Pilot, you will promptly send written notice to: Pilot.com, Inc., Attention: Legal, PO Box 7775 #86889, San Francisco, California 94120-7775.

9.3 Governing Law

This Agreement and all claims (including procedural issues) between the parties are governed by the laws of California, excluding California’s conflict of laws rules.

9.4 Informal Resolution

Before filing a claim, you and we each agree to try to resolve the dispute by contacting the other party through the notice procedures in Section 9.2 (Notice of Disputes). If a dispute is not resolved within thirty days of notice, you and we may bring a formal proceeding.

9.5 Arbitration

You and Pilot agree to resolve any and all claims relating to this Agreement, the CFO Services or Deliverables through final and binding arbitration, except as set forth below. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules. The arbitration will be held in San Francisco (CA), or any other location both parties agree to in writing.

9.6 Exception to Arbitration

Either party may bring a lawsuit in the federal or state courts of San Francisco County, California solely for injunctive relief to stop unauthorized use or abuse of the CFO Services or Deliverables or infringement of intellectual property rights without first engaging in the informal dispute notice process described above.

9.7 No Class Actions

You may only resolve disputes related to or arising from the CFO Services or Deliverables with the Pilot Entities on an individual basis and will not bring a claim in a class, consolidated, or representative action.

9.8 30-Day Opt-Out Period

If you don’t wish to be bound by these arbitration provisions (including its waiver of class and representative claims), you must notify us by emailing [email protected] no later than 30 days after the first acceptance date of any version of this Agreement containing an arbitration provision (unless a longer period is required by applicable law). An opt-out notice does not revoke any previous arbitration agreement between us.

9.9 Future Changes to this Dispute Resolution Agreement

If Pilot makes any changes to this Section 9 (or successor section and not including Section 9.2 (Notice of Disputes)), you may reject any such change by notifying us via the procedure set forth in Section 9.8 (30-day opt-out period) within 30 days of the change. It is not necessary to submit a rejection of a future change to this Section 9 if you have properly opted out of arbitration in compliance with the requirements of Section 9.8 (30-day opt-out period).

10. Miscellaneous

10.1 Updates to these Terms

Pilot may make nonmaterial changes to these Terms at any time without notice, but we will provide advance notice of any material changes to them. Other than changes made under Section 9.9 (Future Changes to this Dispute Resolution Agreement), the changes to the Terms will not apply retroactively and will become effective 30 days after we give you notice or the stated effective date of the new terms, whichever is later. If a new version of these Terms has a material negative impact on you, then you may object to the change by notifying us (via [email protected]) within 30 days after we provide you with notice of the changes. If you so notify us, then you will remain governed by the Terms in effect immediately before the change until the end of your then-current Initial Term or Renewal Term, as applicable. After that, you will be governed by the changed Terms. Notwithstanding anything to the contrary in the foregoing, any changes to the Terms related to new features or made for legal reasons will become effective immediately upon notice.

10.2 Severability

If one or more of the provisions contained in this Agreement is held invalid, illegal or unenforceable in any respect by any court of competent jurisdiction, such holding will not impair the validity, legality, or enforceability of the remaining provisions.

10.3 Assignment

You may not assign this agreement, or your rights or obligations under it, in whole or in part and any such assignment is void. Pilot may freely assign this Agreement, or its rights and obligations under it, in whole or in part.

10.4 Electronic Notices

We will communicate with you via email. It is your responsibility to keep your e-mail address up-to-date so that you are able to receive electronic communications from us.

10.5 Entire Agreement; Amendments

This Agreement constitutes the entire agreement between you and Pilot with respect to its subject matter, and supersedes any and all prior agreements, discussions, negotiations, and offers. Except as specifically stated otherwise in the Agreement, any amendment to the Agreement must be in writing, expressly state that it is amending this Agreement and be signed by both parties.

10.6 Order of Precedence; Headings

In the event of a conflict between these Terms and any Order Form, these Terms shall govern. Headings are for information purposes only.

10.7 Third-Party Beneficiaries

Pilot’s Affiliates and Pilot’s and its Affiliates’ suppliers and distributors are intended third party beneficiaries of Warranty Disclaimers, Limitation of Liability, and Indemnification provisions. Except as expressly set forth in the foregoing, there are no third party beneficiaries to these Terms.

10.8 Non-Disclosure

These Terms incorporate by reference the Non-Disclosure Agreement provided to you at https://www.pilot.com/nda. At your request, Pilot will execute an additional copy of the Non-Disclosure Agreement for your records.

10.9 Privacy Statement

These Terms incorporate by reference the Pilot Privacy Statement provided to you at https://www.pilot.com/privacy.