CFOShare, Inc. STANDARD TERMS AND CONDITIONS
This document sets forth the terms and conditions of our engagement to provide certain financial and accounting services as further outlined in the proposal(s) provided to you (the “Proposal”). Certain other specific terms of our engagement may be set forth in the Proposal. In the event of any conflict between the terms and conditions contained herein and the Proposal, the terms and conditions of the Proposal shall control. The Proposal and these terms and conditions are sometimes referred to herein, collectively, as the “Agreement”. As used in this document, the terms “CFOshare,” “we”, “us” and “our” mean CFOShare, Inc. and its subsidiaries, independent contractors and subcontractors, and the terms “you” and “your” mean the client identified in the Proposal.
Scope of Work. We will provide business financial advice, tools, models, or other material to be used as guidance for your business as described previously in this document. Unless otherwise agreed, our engagement will be limited to such matters and we will not undertake to advise you in connection with any unrelated matters unless we otherwise agree. If we agree to do so, our engagement may be expanded in the future to include additional issues or matters, and these terms and conditions shall apply in all such cases, whether a proposal is provided in each case.
Responsibility. A specific representative will be assigned the responsibility for your work, and we anticipate that representative will handle the majority of the work involved in our engagement with you. However, we may use other analysts outside our firm on a contract basis to perform some tasks. Additionally, we may consult with and obtain assistance from other consultants outside our firm on a contract basis if our engagement touches on matters outside our areas of expertise.
Privacy. During the course of our engagement, we collect nonpublic personal information about you and your business that is provided to us by you or obtained by us with their authorization or consent. WE DO NOT DISCLOSE PERSONAL INFORMATION ABOUT OUR CLIENTS OR FORMER CLIENTS TO ANYONE, EXCEPT AS PERMITTED BY LAW AND ANY APPLICABLE STATE ETHICS RULES. We do not disclose any nonpublic personal information about current or former clients obtained in the course of services provided to those clients, except as expressly or impliedly authorized by those clients to enable us to effectuate the purpose of our engagement or as required or permitted by law or applicable provisions of codes of professional responsibility or ethical rules governing our conduct as financial professionals. We retain records relating to professional services we provide for a period of two years following conclusion of any billable work so that we are better able to assist our clients with their needs and to comply with professional guidelines and requirements of law. In order to guard our clients’ nonpublic personal information, we maintain physical, electronic and procedural safeguards that comply with our professional standards, if applicable.
We respect our client’s confidentiality and agree to make all reasonable efforts to maintain their privacy, including non-disclosure of confidential information to third parties. However, you will hold us harmless for any damage caused by information provided to third parties in following instances: the information is already available in the public domain or information becomes available in public domain, the information is stolen from hacking or security breaches, the information is provided to software providers as a matter of standard service agreements and protected by their privacy policies, the information is provided to a third party by you the client, or applicable law requires the disclosure of the information.
Sales Tax Services and Payment of Taxes. Client acknowledges and agrees, with respect to any services provided by CFOshare to client related to Taxes (as defined below): (a) CFOshare is providing any such services on the client’s behalf as a consultant, but is not acting as an officer, manager, member, employee or director of client, (b) CFOshare’s services and advice remain subject to the supervision, direction, and control of client and CFOshare assumes no duty or responsibility to comply with any Tax laws or regulations, file or sign Tax returns, or pay Taxes on behalf of client without prior approval from client, (c) CFOshare has no independent authority to make payments on behalf of client or control client’s funds or bank accounts without the prior authorization and consent of client, which authorization and consent is supervised and controlled by client, and (d) CFOshare disclaims any and all liability for, and client agrees it is solely responsible for, any applicable Taxes, including the collection, remittance and reporting thereof. For purposes of this agreement, Taxes shall mean “any and all federal, state, local, and non-U.S. income, corporation, pass-through, capital gains, ad valorem, sales, use, gross receipts, compensating, value added, excise, goods and services, employment, payroll, social security, intangibles, fees, stamp taxes, duties, charges, levies and assessments in the nature of taxes of any kind, together with any interest and any penalties (other than income taxes payable by CFOshare for income generated under the agreement).”
Electronic Communication. We regularly communicate with our clients by electronic means, including facsimile machines, e-mail and cellular telephones. As you are no doubt aware, these forms of communication are not entirely secure against unauthorized access, and therefore contain some risk of loss of confidentiality or violation of any non-disclosure agreements. We make reasonable efforts to protect the confidentiality of electronic communications through notices and other means. However, if you object to our use of any of these forms of communication, please notify us of that fact in writing so that we may take appropriate steps to honor your request.
Alternative Fee Arrangements. Occasionally, we are asked to offer an alternative to hourly billing and where reasonably possible we will attempt to honor such requests. We may also propose alternate fee arrangements to clients from time to time when we believe it may be appropriate or desirable in a particular case. These alternative arrangements may take the form of a fixed fee for a clearly defined set of tasks or an equity stake in your company. Any such arrangements must be compliant with our professional ethical standards, and thus we reserve the right to cancel any such arrangements deemed inappropriate, either before during or after completion of services.
Fee Estimates. Unless otherwise agreed in writing, any estimate of fees we may provide is an estimate only and not a guarantee or commitment that or total fees will not exceed the estimate. Although we endeavor to be as accurate as possible in making fee estimates, unforeseen factors or complications and increased client needs that arise during the course of engagement can cause an original estimate to be inaccurate.
Reimbursable Expenses. In addition to our fees, you will be responsible for all reasonable and necessary disbursements incurred by us in the course of our engagement including any travel, lodging, and meal expenses, government or court filing fees, Federal Express and other delivery charges, photocopying and binding charges, and similar expenses. All such expenses will be billed at cost. We generally do not bill for local or long distance phone calls, facsimiles, ordinary postage (other than delivery charges), or occasional and incidental copying costs.
Payment Terms. Standard payment terms are Net 15. All clients are required to enroll in auto ACH debit payments. These payments will be executed on the 15th of each month for the invoice issued one month prior.
Invoices paid late will be assessed 2% interest per month. We may require that you post a deposit for fees and costs either at the beginning or during the course of our engagement. The deposit will be held in our operating account to secure payment of our invoices and will bear no interest. Invoices will be sent by electronic mail unless you express a preference to have invoices mailed to you via the U.S. mail. If our invoices are not paid promptly, we may cease performing services for you until satisfactory arrangements have been made. You will also be responsible for all costs and fees of collection should your account become delinquent. Invoices will include fees for services rendered and disbursements. We make every effort to include disbursements in the statement for the time period in which the disbursements are incurred. However, some of the disbursements we frequently make on behalf of clients (for example, Federal Express charges or filing fees) are not available to us until the following months, in which case a supplemental statement will be sent to you for those charges. Please contact us if you have any questions or comments regarding any of our invoices.
Termination. Unless specifically noted otherwise, you have the right to terminate hourly engagements at any time. Although we recommend a 30-day advance notice when cancelling recurring monthly services so as to ensure enough time to transition fiscal management to your new accounting or CFO group, no advance notice is required. We have the same rights to terminate this engagement. In either event, fees and costs incurred on or before the date of termination must be paid as described above.
Solicitation of Employees, Consultants and Other Parties. You agree that during the term of this Agreement and for a period of twelve (12) months immediately following the termination of the Agreement for any reason, whether with or without cause, you shall not directly or indirectly solicit, induce, recruit or encourage any of our employees or consultants to terminate their relationship with us, or otherwise take away, hire or otherwise engage the services of such employees or consultants, or attempt to solicit, induce, recruit, encourage or take away our employees or consultants, either for yourself or for any other person or entity. For the avoidance of doubt, the restrictions contained in this shall not apply if either: (a) you obtain our prior written consent to solicit or hire our employees or consultants or (b) you pay us an amount equal to the maximum of i.) twice the then applicable annual compensation we are required to pay such employee or consultant that is in effect on the date of such solicitation prior to the termination of their relationship with us or ii.) fifty-thousand dollars ($50,000.00) whichever is greater.
Data. You agree to promptly provide us with all information, data and materials requested or reasonably necessary for the us to provide the Services (collectively, the “Data”), and acknowledges and agrees that the us may not be able to accurately or provide in a timely fashion the Services unless and until such Data has been provided. You represent and warrant that: (a) the Data furnished by you or your representatives and any other relevant documents or material information furnished by you or your representatives pertaining to assets, liabilities (whether recorded on the your financial statements or otherwise), financial affairs, current or pending litigation or claims, operations or profitability of the you and any other provided information are accurate and (b) we may rely upon the accuracy of that information without independent investigation. You further agree to promptly notify us of any material change or development in the operations, financial condition or prospects of us or its assets.
Updating Terms and Conditions We may update our Standard Terms and Conditions from time to time, and in such event, we will give you written notice of any changes.
Independent Contractor. We are independent contractors to you. Neither party shall be, nor be considered to be, an agent, representative, or partner of the other party. Neither party shall have any right, power, or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party. Our engagement shall not be interpreted or construed to create an association, agency, joint venture, or partnership between the parties or to impose any liability attributable to such a relationship upon either party and neither party nor any of either party’s personnel shall be entitled to receive any compensation, benefits or other incidents of employment from the other party. The provisions of this Agreement are for the exclusive benefit of the parties and their permitted assigns, and neither party intends to benefit any other person or entity, including, without limitation, a “third party beneficiary,” as that term may be defined by applicable statutory or case law, and no person or entity who is not a party (including, without limitation, an obligor, borrower, or guarantor) will have any rights or claim against a party by virtue of this Agreement. The requirements of this section shall survive the expiration, termination, or cancellation of this Agreement to the greatest extent permitted by law.
No Investment Advice. NEITHER CFOSHARE NOR ANY OF ITS EMPLOYEES OR PRINCIPALS ARE A REGISTERED INVESTMENT ADVISOR, FINANCIAL ADVISOR, ADVISORY SERVICE, OR A BROKER DEALER IN SECURITIES AND NO INFORMATION CONTAINED IN ANY MATERIALS DISCLOSED PURSUANT TO THIS AGREEMENT OR OTHERWISE RELATED TO THE PROJECT (WHETHER SUCH INFORMATION INCLUDES ANY ANALYSIS OR OPINION OF ANY SUCH PARTIES) SHALL BE DEEMED INVESTMENT ADVICE. NEITHER CFOSHARE NOR ANY OF ITS EMPLOYEES OR PRINCIPALS PROVIDES INVESTMENT ADVICE TO ENTITIES OR INDIVIDUALS AND NO INFORMATION CONTAINED IN ANY MATERIALS DISCLOSED PURSUANT TO THIS AGREEMENT OR OTHERWISE RELATED TO THE PROJECT, IS INTENDED, DIRECTLY OR INDIRECTLY, TO PROVIDE ADVICE AS TO THE ADVISABILITY OF INVESTING IN, PURCHASING, HOLDING OR SELLING ANY ASSETS RELATED TO THE PROJECT OR ANY INTEREST THEREIN. ALL SUCH INFORMATION IS FOR INFORMATIONAL PURPOSES ONLY AND EACH RECIPIENT SHOULD SEEK AND HAS HAD THE OPPORTUNITY TO SEEK INDEPENDENT ADVICE FROM A LICENSED FINANCIAL ADVISOR, BROKER, ACCOUNTANT, ATTORNEY OR OTHER PROFESSIONAL TO CONFIRM VALIDITY AND ACCURACY OF ANY CLAIM MADE IN SUCH INFORMATION AND BEFORE ANY INVESTMENT OR FINANCIAL DECISION RELATED TO ANY ASSETS RELATED TO THE PROJECT OR ANY INTEREST THEREIN.
Service Guarantee. Subject to all limitations of liability and conditions set forth herein, CFOshare guarantees the FP&A and CFO services delivered pursuant to this Agreement will improve your financial management performance within 60 days following implementation of such services. This service guarantee is conditioned upon and subject to your (i) full and accurate completion, in good faith using your best business judgment, of both an onboarding assessment (the “Onboarding Assessment”) and 60-day post service implementation assessment (the “60-Day Service Assessment”), and (ii) good faith implementation of our services as advised by us. If there has been no improvement in your financial management performance based on CFOshare’s review and analysis of the Onboarding Assessment, the 60-Day Service Assessment, and your implementation of the services delivered hereunder, in each case, such determination of improvement in CFOshare’s sole discretion, we will refund to you in full all payments made for services rendered in the first 60 days of our engagement.
Disclaimer Of Warranties. WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OF DATA, OR NONINFRINGEMENT WITH RESPECT TO THE DELIVERABLES OR WORK PRODUCT, SERVICES OR THE FUNCTIONALITY, PERFORMANCE OR RESULTS OF USE THEREOF. WE SPECIFICALLY DISCLAIM ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE PRODUCTS, ACTS OR OMISSIONS OF THIRD PARTIES WHO ARE NOT A PARTY TO THIS AGREEMENT. AND WHETHER SAID PRODUCTS, ACTS OR OMMISIONS ARE FREE FROM ANY ERRORS, DEFECTS, OR INFRINGEMENT OR INTERFERENCE WITH ANOTHER’S INTELLECTUAL PROPERTY OR PROPRIETARY INTEREST, AND YOU WAIVE ANY CLAIM OF DIRECT, CONTRIBUTORY OR INDIRECT LIABILITY OF US FOR, ANY SUCH ERRORS, DEFECTS, INFRINGEMENT OF ANOTHER’S INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS OR INTERRUPTIONS IN OUR SERVICES OR WORK PRODUCT WHICH ARE CAUSED IN WHOLE OR IN PART BY OR RELATED TO THE THRID PARTY PRODUCTS, ACTS OR OMISSIONS. WE DO NOT GIVE ANY IMPLIED WARRANTY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OF FITNESS FOR ANY PARTICULAR PURPOSE, OR OF NON-INFRINGEMENT OR ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.
Nonexclusive Agreement. Nothing in this Agreement shall be construed as limiting our rights to perform any other work for any other clients whether or not such work is similar to the services provided hereunder. We expressly reserve the right to perform any other work for any other client whether or not such work is similar to the services provided hereunder or whether or not such other client is a direct competitor of Client. No act or statement by us shall be considered a waiver of this provision.
Indemnification. You agree to indemnify and hold CFOshare and its shareholders, directors, officers, and the parties and persons it designates to perform the services (collectively, the “Consultant Parties”), harmless with respect to any attorneys’ fees, claims, losses, costs, damages, liabilities, awards, proceedings, or any other expenses of any kind or nature, in law or at equity (including reasonable attorney fees) (collectively “Losses”), directly or indirectly related to the provision of the services and/or your: (i) actions or omissions, (ii) breach of this Agreement, (iii) otherwise related to the your business, and (iv) any Taxes imposed on CFOshare arising from or related to its services provided to you. In addition, you agree to defend, indemnify and hold harmless the Consultant Parties against any and all Losses with respect thereto, arising out of or otherwise resulting from either: (i) our communication to any party, in accordance with the Agreement, of any of the Data furnished by you or your representatives, (ii) the inaccuracy of the Data furnished by you or your representatives or (iii) any obligation of you under this Agreement. This indemnification obligation will survive the expiration or termination of this Agreement. Your indemnification obligations shall not apply to CFOshare’s gross negligence or willful misconduct in the performance of its obligations under this Agreement, except as such actions or omissions may have been directed or otherwise required by you.
DISCLAIMER OF DAMAGES AND LIABILITY. EXCEPT FOR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS AS SET FORTH IN THE IMMEDIATELY PRECEDING PARAGRAPH, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF USE, LOSS OF BUSINESS OR LOSS OF PROFIT, EVEN IF A PARTY HAS PREVIOUSLY BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR THE DAMAGES WERE OTHERWISE FORESEEABLE.
Limitation of Liability. Notwithstanding anything in this Agreement to the contrary, our liability for any damages arising out of or in connection with this Agreement, regardless of the form of action (including breach of contact, warranty, negligence, strict liability, infringement or interference with a third party’s intellectual property or proprietary rights, or otherwise) shall not exceed the aggregate amounts paid by you for the services under this Agreement during the 12 months preceding the event giving rise to such liability and you hereby waive and disclaim any other damages or remedies related to this Agreement. Except as provided in this Agreement, you release us, and our agents, employees, or others providing material or performing services in connection with this Agreement from and against any and all liability, as well as costs of defense, settlement and reasonable attorneys’ fees, irrespective of fault or negligence, except where such liability arises out of the gross negligence or willful misconduct on the part of us or our personnel or both. This section shall survive the expiration, termination, or cancellation of this Agreement to the greatest extent permitted by law.
Attorneys’ Fees. Should either party engage in legal proceeding relating to the enforcement of this Agreement, the prevailing party in such legal proceeding shall receive from the other party all of the prevailing party’s fees, costs and expenses, including without limitation, reasonable attorneys’ fees and court costs, in addition to any other relief awarded by the court.
Governing Law; Jurisdiction. This Agreement will be governed by and interpreted under the laws of the State of Colorado applicable to contracts entered into and wholly to be performed within the State of Colorado without regard to the conflicts of law provisions therein. The rights and obligations of the parties to this Agreement shall specifically not be governed by the United Nations Convention on Contracts for the International Sale of Goods. You hereby irrevocably consent that any legal action or proceeding against you or any of your assets with respect to any of the obligations arising under or relating to this Agreement may be brought in, and exclusively in, any state or federal court located in the City and County of Denver, State of Colorado and you hereby submit to jurisdiction and consent to venue in such courts and waive any defense based on forum non conveniens.