Last Updated January 29, 2019
These Terms of Service (“Terms of Service”) constitute the terms and conditions that govern the relationships between NOW CFO, LLC’s operating subsidiary entities (“NOW CFO”), and their clients (each a “Client”) who agree to receive professional finance and accounting consulting services from NOW CFO by entering into a NOW CFO Services Agreement (“Services Agreement”). These Terms of Service are expressly incorporated into each Services Agreement. All capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Services Agreement. By signing a Services Agreement or otherwise receiving any Services from NOW CFO, Client agrees to be bound by these Terms of Service.
- Relationship of the Parties. In providing the Services, NOW CFO (and its consultants) will be acting as an independent contractor and not as an agent, partner, employee or representative of Client. Nothing in the Services Agreement or these Terms of Service shall be construed to create a partnership, joint venture, employment relationship, or fiduciary relationship between the parties.
- Confidentiality of Client Information. In connection with the provision of the Services, NOW CFO will require access to Client’s books, records, and other information regarding Client, which shall be provided by Client or Client’s designated third-party representatives (“Client Information”). Except as consented to in writing by Client or as required by applicable law or court order, NOW CFO will maintain the confidentiality of all Client Information, and will use the Client Information for the sole purpose of providing the Services; provided, however, that no confidentiality obligations will apply to Client information that is publicly available or was rightfully obtained from a third party. Any work product created by NOW CFO in the course of providing the Services and paid for by Client will be the property of Client. In the event NOW CFO is deemed to have any right, title or interest to any work product created for and paid by Client, NOW CFO shall waive such right in favor of Client, and shall take all reasonable action as requested by client to secure Client’s ownership rights. NOW CFO agrees to control the use and disclosure of Client Information with diligence and care, and to treat the Confidential Information with the same level of protection as it affords its own confidential information of a similar nature. NOW CFO may share Client Information with its agents and representatives who reasonably need to know such information for purposes of performing NOW CFO’s obligations under the Services Agreement.
- Reliance on Client Information. NOW CFO will rely on the Client Information provided by Client in performing the Services and will not independently verify or audit Client Information. Accordingly, it is Client’s sole responsibility to ensure that Client Information is accurate and complete, and to inform NOW CFO promptly of any suspected error. Services provided by NOW CFO are not intended to uncover inherent errors in Client Information; however, NOW CFO may notify Client if any such errors are discovered. NOW CFO shall not be liable, in any manner, to any third party or any governmental authority, and Client shall defend, indemnify and hold NOW CFO harmless from and against, any claims, damages, causes of action, or criminal fines or penalties relating to, arising out of, or concerning any errors or mistakes in any work product, or any other failure in the performance of the Services that relates to, arises out of, or is caused by Client’s failure to deliver accurate, complete, and timely Client Information to NOW CFO. Client agrees to deliver all relevant Client Information to NOW CFO on a timely basis as requested by NOW CFO. To the extent NOW CFO does not receive necessary Client Information within the timeframes requested, which delays NOW CFO’s delivery or completion of the Services, Client will nonetheless remain responsible for the payment of all fees and expenses required under the Services Agreement arising out of the Services.
- Default Interest Fees and Collection Costs; Rate Increases. All fees and expenses required to be paid by Client to NOW CFO arising out of the Services shall be due in accordance with the payment terms agreed upon in the Services Agreement. Any fees or expenses remaining unpaid more than ten (10) days of the date when due shall bear interest at the rate of 1.5% per month until fully paid. Further, Client understands and agrees that if Client fails to pay any outstanding invoices following written notice from NOW CFO, NOW CFO may: (i) assign the outstanding balance to a collections agency; (ii) report Client’s non-payment to the credit bureaus; and/or file a civil legal action to collect the amounts owing. Client agrees to pay all costs incurred by NOW CFO in collecting any unpaid fees and expenses, including all collection agency fees and costs, all court costs, witness and expert witness fees, filing fees and reasonable attorneys’ fees; whether incurred prior to, during or subsequent to any mediation, arbitration, litigation, bankruptcy, receivership, liquidation, collection or appellate proceeding. The Standard Hourly Rates charged to Client by NOW CFO shall automatically increase by ten percent (10%) upon the one (1) year anniversary of the Effective Date of the Services Agreement.
- Termination of Services. Either party may terminate the Services Agreement (a) for any reason or no reason upon at least thirty (30) days prior written notice to the other party; (b) with cause following five (5) days prior written notice to the other party regarding the other party’s uncured material breach of any covenant, obligation, representation or warranty of the Services Agreement or these Terms of Service; or (c) with cause immediately in the event of any act of fraud, gross negligence, reckless or willful misconduct, felonious conduct, or in the event the other party is insolvent or files for bankruptcy. NOW CFO also reserves the right to terminate the Services Agreement immediately in the event NOW CFO discovers information regarding Client or its agents or representatives that is counter to NOW CFO’s business or financial interests, reputation or goodwill, in NOW CFO’s sole and absolute discretion. In the event of any termination, Client shall be responsible for all fees and costs incurred for NOW CFO’s performance of the Services up to the date of termination. The confidentiality obligations of NOW CFO set forth in Section 2 of these Terms of Service shall survive for a period of three (3) years after the termination of the Services Agreement or completion of the Services.
- Return or Destruction of Client Information. Upon termination of this Agreement for any reason, NOW CFO will promptly return, or, at the election of Client, destroy, all Client Information and other property of the Client, if any, then in NOW CFO’s possession or control. Client acknowledges and understands that NOW CFO’s policy is to delete, destroy or dispose of all communications and Client files and records (including but not limited to emails) that are non-essential for the on-going performance of Services after six (6) months of receipt or last use. Client is on notice to save all of its own work, data and records on its own system in order to keep such documentation intact. NOW CFO shall have no obligation to maintain records for Client other than what is necessary to perform the Services. Notwithstanding anything else herein to the contrary, NOW CFO, at its sole discretion, may retain copies of its work product and supporting information for its records. Under no circumstances will NOW CFO be considered a “custodian of records” under the Rules and Regulations of the US Securities & Exchange Commission. Further, if Client utilizes a storage system for storing its records and data, NOW CFO shall not be the creator or controller of such system. Client may allow NOW CFO access to such storage system for purposes of providing the Services, but access and authorization to access such storage system shall revert back fully and exclusively to Client upon completion of the Services or termination of the Services Agreement.
- Indemnification by Client. Except to the extent caused by the gross negligence, fraud or willful misconduct of NOW CFO, Client agrees to indemnify, defend and hold NOW CFO harmless from and against all claims, damages, causes of action, fines and penalties (collectively, “Claims”) from any third-party or governmental entity relating to, concerning or arising out of: (i) the Services; (ii) third-party reliance upon NOW CFO’s work product, including but not limited to banks, leasing companies, financing companies or taxing authorities; (iii) late or missed public entity filings or deadlines caused by past-due invoices, insufficient retainer balances or any other cause of NOW CFO work stoppage permitted in the Services Agreement, these Terms of Service, or applicable law; or (iv) any infringement of any intellectual property or trade secrets by reason of Client Information or work product based upon such Client Information. Client agrees to assume full financial responsibility for the payment of any loss, liability or expense (including but not limited to reasonable attorneys’ fees) incurred by NOW CFO in connection with any such Claim and the defense or settlement of any such Claim. This Section shall survive termination of the Services Agreement. NOW CFO may direct the defense and settlement of any such Claim with counsel of NOW CFO’s choosing, and Client will provide NOW CFO with reasonable assistance, as requested. NOW CFO shall not be liable for any settlement of an action effected without its written consent, which consent shall not be unreasonably withheld.
- Indemnification by NOW CFO. Subject to Section 12 below, NOW CFO agrees to indemnify, defend and hold Client harmless from and against all Claims from any third party or governmental entity relating to, concerning or arising out of (i) physical injury to or destruction of Client’s property during the performance of the Services by NOW CFO; (ii) gross negligence in NOW CFO’s work product; or (iii) any infringement of any intellectual property or trade secrets by NOW CFO during the course of performing the Services. Subject to Section 12 below, NOW CFO agrees to assume full financial responsibility for the payment of any loss, liability or expense (including but not limited to reasonable attorneys’ fees) incurred by Client in connection with any such Claim and the defense or settlement of any such Claim. This Section shall survive termination of the Services Agreement. Client may direct the defense and settlement of any such Claim with counsel of Client’s choosing, and NOW CFO will provide Client with reasonable assistance, as requested. Client shall not be liable for any settlement of an action effected without its written consent, which consent shall not be unreasonably withheld.
- Miscellaneous Expenses. To the extent that Client requests that NOW CFO provides any out-of-town work while providing the Services, then, in additional to reimbursing NOW CFO all other relevant costs and expenses incurred in performing the Services, including costs of travel and lodging, Client shall pay to NOW CFO a per diem of $50 per NOW CFO consultant per day for meals. Moreover, to the extent that Client requests that NOW CFO provide its consultants for such number of hours in a given day or week that will trigger over-time or double-time pay under applicable municipal, state or federal law, NOW CFO shall pass on to Client, and Client hereby agrees to reimburse NOW CFO for, all increased labor costs and expenses, including over-time and double-time pay.
- Limited Warranty. NOW CFO represents and warrants that it will perform the Services in a diligent, professional and competent manner in accordance with industry standards, utilizing personnel with a level of skill commensurate with the Services to be performed. NOW CFO MAKES NO OTHER REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SERVICES, AND HEREBY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF ACCURACY, QUALITY, FREEDOM FROM ERROR, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY NOW CFO, ITS AGENTS, OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE LIMITED WARRANTY PROVIDED HEREIN. NOW CFO may, in the course of providing the Services, provide advice or opinions regarding the outcome of certain matters or predictions of future outcomes or performance. Although NOW CFO will make reasonable efforts to ensure the accuracy of such advice or opinions, future outcomes or performance are naturally uncertain and therefore cannot be guaranteed.
- Tax Filings. Client acknowledges that it is solely responsible for the accuracy of any tax filings. Therefore, to the extent the Services involve preparation of any tax filings, Client agrees that its authorized representatives will review and approve such filings before signing and submitting such filings.
- Limitation of Liability. IN NO EVENT WILL NOW CFO BE LIABLE TO CLIENT FOR ANY SPECIAL, INCIDENTAL, INDIRECT, RELIANCE, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS), WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, WHETHER OR NOT NOW CFO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. MOREOVER, NOW CFO’S TOTAL LIABILITY UNDER THE SERVICES AGREEMENT AND THESE TERMS OF SERVICE SHALL BE LIMITED TO PROVEN DIRECT DAMAGES NOT TO EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY CLIENT TO NOW CFO PURSUANT TO THE SERVICES AGREEMENT.
- Basis of the Bargain. The limited warranty and disclaimer, exclusive remedies, and damages cap set forth above are fundamental elements of the basis of the agreement between NOW CFO and Client. NOW CFO would not be able to provide the Services to Client on an economic basis without such limitations. Furthermore, the limitations or exclusions of warranties, remedies or liability contained in these Terms of Service shall apply only to the extent permissible under applicable law, which may vary from state to state.
- Force Majeure. If the performance of the Services or any other obligation under the Services Agreement or these Terms of Service is prevented, restricted, or interfered with by causes beyond a party’s reasonable control (“Force Majeure”), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrences, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, and/or work stoppages. The excused party shall use reasonable efforts under the circumstances to avoid or remove such cause of nonperformance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased.
- Integration and Severability. The Services Agreement and these Terms of Service represent the complete and exclusive agreement between NOW CFO and Client and supersedes all prior communications, whether written or oral, relating to the subject matter hereof. No amendment or modification to the Services Agreement shall be valid or binding upon the parties unless in writing and signed by each party. No course of conduct shall be deemed to constitute an amendment or modification, and no waiver shall be deemed a continuing waiver unless agreed to in writing by the party to be charged therewith. If any provision of the Services Agreement or these Terms of Service is determined by a court of competent jurisdiction to be invalid or incapable of being enforced, such provision shall be excluded to the extent of such invalidity or unenforceability. All other terms hereof and thereof shall remain in full force and effect.
- Modifications. These Terms of Service may be amended and updated from time to time at the sole discretion of NOW CFO. Modified versions of these Terms of Service will be considered effective as of the date and time posted to NOW CFO’s website. Client’s continued use of the Services after such modifications are posted will signify Client’s continued acceptance of, and agreement to be bound by these Terms of Service, as modified.
- Arbitration. Any controversy or claim arising out of or relating to the Services Agreement or these Terms of Service, or the making, performance or interpretation thereof, other than a claim by NOW CFO for injunctive or equitable relief, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitration shall be held in Salt Lake County, Utah. Any judgment on the arbitration award may be entered in any court having jurisdiction over the subject matter of the controversy.
- Legal Disputes. In the event of any legal dispute (including arbitration) regarding the interpretation or enforcement of the Services Agreement or these Terms of Service, the prevailing party in such dispute shall be entitled to recover from the other party its costs and expenses incurred in such dispute, including reasonable attorneys’ fees, court/arbitration costs, and expert witness fees, the amount of which shall be fixed by the court/arbitrator and made a part of any judgment rendered.