Pilot Services Agreement

Last updated: May 11, 2020


Welcome to Pilot.

This Services Agreement (“Agreement”) is a legal agreement between Pilot Platform Inc., and its related affiliates and subsidiaries (“Pilot”, “us”, or “we”) and the entity (“Company”, “you”, “your”, or “user”) who uses Pilot’s Services (hereinafter defined). For purposes of this Agreement, Pilot and the Company are each a “Party,” and are collectively the “Parties”. This Agreement describes the terms and conditions that apply to your use of the Services.

If you do not understand any of the terms of this Agreement, please contact Pilot before using the Services.

Before using the Services, you must register with Pilot and create an account (a “Pilot Account”).

In order to use the payment functionality of Pilot’s application, you must open a “Dwolla Platform” account provided by Dwolla, Inc. and you must accept the Dwolla Terms of Service and Privacy Policy. Any funds held in the Dwolla account are held by Dwolla’s financial institution partners as set out in the Dwolla Terms of Service. You authorize Pilot to collect and share with Dwolla your personal information including, but not limited to, full name, date of birth, social security number, physical address, email address and financial information, and you are responsible for the accuracy and completeness of that data. You understand that you will access and manage your Dwolla account through Pilot’s application, and Dwolla account notifications will be sent by Pilot, not Dwolla. Pilot will provide customer support for your Dwolla account activity, and can be reached at help.pilot.co or support@pilot.co.

You may not access or use any Services unless you agree to abide by all of the terms and conditions in this Agreement.

Recitals

Whereas, Pilot may provide employer of record services, contractor management services, staff augmentation services, and recruitment services through its proprietary software platform (“Pilot’s Platform”);

Whereas, Pilot shall supply the services as described in the Product Specific Terms, as such term is defined in Section 1.1 below (collectively, “Services”), and Company wants to receive such Services.

NOW, THEREFORE, the Parties, intending to be legally bound, agree as follows:

Scope of this Agreement

  1. Services. Pilot shall provide the Services as described in the Product Specific Terms (“Product Specific Terms”). The Services shall be provided in countries as agreed upon between the Parties in writing from time-to-time.
  2. Pilot’s Platform. The Services shall be provided to the Company through Pilot’s Platform.

Ownership of Pilot IP

As between you and Pilot, Pilot and its licensors exclusively own all rights, title, and interest in the patents, copyrights (including rights in derivative works), moral rights, rights of publicity, trademarks or service marks, logos and designs, trade secrets, and other intellectual property embodied by, or contained in the Pilot Platform (collectively, “Pilot IP”) or any copies thereof. Pilot IP is protected by copyright, trade secret, patent, and other intellectual property Laws, and all rights in Pilot IP not expressly granted to you in this Agreement are reserved.

License

You are granted a nonexclusive and nontransferable license to electronically access and use the Pilot IP only in the manner described in this Agreement. Pilot does not sell to you, and you do not have the right to sublicense the Pilot IP. We may make updates to the Pilot IP or new Services available to you automatically as electronically published by Pilot, but we may require action on your part before you may use the Pilot IP or new Services (including activation through the Pilot Platform, or acceptance of new or additional terms). Pilot may revoke or terminate this licence at any time if you use Pilot IP in a manner prohibited by this Agreement. You may not: (i) claim or register ownership of Pilot IP on your behalf or on behalf of others; (ii) sublicense any rights in Pilot IP granted by us; (iii) import or export any Pilot IP to a person or country in violation of any country’s export control laws; (iv) use Pilot IP in a manner that violates this Agreement or laws; or (v) attempt to do any of the foregoing.

Representations and Warranties

  1. Corporate Power. Each Party hereby represents and warrants that it is a corporation duly organized, validly existing, and in good standing
  2. Full Authority. Each Party hereby represents and warrants that it has the full right, power, and authority to enter into this Agreement and to carry out the transactions contemplated hereby.
  3. Non-Employer for Certain Claims. Company hereby agrees and acknowledges Pilot will not be considered to be an employer of any Worker for purposes of any claims, including for claims of discrimination involving disability, race, sex, sexual harassment, religion, color, age, national origin, marital status, veteran status, retaliation, or for any other claim pursuant to any local, state or federal law regulation, unless the action is taken by Company at the direction of Pilot pursuant to a written corporate policy, procedure, or corporate direction that is unlawful under an applicable local in-country law. “Worker” means any person that Company has engaged through Pilot or its Platform.

Your Pilot Account

  1. Pegistration and Permitted Activities. Only businesses (including sole proprietors), bona fide charitable organizations, and other entities or persons located in the United States are eligible to apply for a Pilot Account to use the Services described in this Agreement. Pilot and its affiliates may provide Services to you or your affiliates in other countries or regions under separate agreements. To register for a Pilot Account, you or the person or people submitting the application (your “Representative”) must provide us with your business or trade name, physical address, email, phone number, tax identification number, and certain other information about you that we require. We may also collect personal information (including name, birthdate, and government-issued identification number) about your beneficial owners, principals, and your Pilot Account administrator. Until you have submitted, and we have reviewed and approved, all required information, your Pilot Account will be available to you on a preliminary basis only, and we may terminate it at any time and for any reason. If you use Contractor Payments then your name may appear on recipients’ bank statements. Your name (or the name used to identify you) and URL may appear on your Workers’ c bank or other statements.
  2. Business Representative. You and your Representative individually affirm to Pilot that (i) your Representative is authorized to provide the information requested on your behalf and to bind you to this Agreement and (ii) your Representative is an executive officer, senior manager or otherwise has significant responsibility for the control, management or direction of your business. We may require you or your Representative to provide additional information or documentation demonstrating your Representative’s authority. Without the express written consent of Pilot, neither you nor your Representative may register or attempt to register for a Pilot Account on behalf of a user Pilot previously terminated from use of the Services. If you are a sole proprietor, you and your Representative also affirm that your Representative is personally responsible and liable for your use of the Services and your obligations to Workers, including payment of any amounts owed under this Agreement. You may not use the Services if you are under 18 years of age.
  3. Validation and Underwriting. At any time during the term of this Agreement and your use of the Services, we may require additional information from you to verify beneficial ownership or control of the business, validate information you provided, verify you or your Representative’s identity, and assess your financial condition and the risk associated with your business. This additional information may include business invoices, copies of government-issued identification, business licenses, or other information related to your business, its beneficial owners or principals. If you use Payment Processing Services, we may also request that you provide copies of financial statements, reporting and validating documentation that allows us to calculate outstanding credit exposure/risk of loss, or other records pertaining to your compliance with this Agreement. We may also require you to provide a personal or company guarantee. Your failure to provide this information or material may result in suspension or termination of your Pilot Account. You authorize us to retrieve information about you from our service providers and other third parties, including credit reporting agencies and information bureaus and you authorize and direct such third parties to compile and provide such information to us. You acknowledge that this may include your name, addresses, credit history, and other data about you or your Representative. You acknowledge that we may use your information to verify any other information you provide to us, and that any information we collect may affect our assessment of your overall risk to our business. You acknowledge that in some cases, such information may lead to suspension or termination of your Pilot Account. Pilot may periodically update this information as part of our underwriting criteria and risk analysis procedures.
  4. Changes to Your Business, Keeping your Pilot Account Current. You agree to keep the information in your Pilot Account current. You must promptly update your Pilot Account with any changes affecting you, the nature of your business activities, your Representatives, beneficial owners, principals, or any other pertinent information. We may suspend your Pilot Account or terminate this Agreement if you fail to keep this information current. You also agree to promptly notify us in writing no more than three days after any of the following occur: you are the subject of any voluntary or involuntary bankruptcy or insolvency application, petition or proceeding, receivership, or similar action (any of the foregoing, a “Bankruptcy Proceeding”); there is an adverse change in your financial condition; there is a planned or anticipated liquidation or substantial change in the basic nature of your business; you transfer or sell 25% or more of your total assets, or there is any change in the control or ownership of your business or parent entity; or you receive a judgment, writ or warrant of attachment or execution, lien or levy against 25% or more of your total assets.

Obligations and Representations

  1. Worker Data. The Company represents that it shall, at all times during the Term, (i) have authorization to transfer Worker data hereunder for management over Pilot’s Platform, and (ii) transfer such data in accordance with applicable law. Pilot represents that it shall, at all times during the Term, transmit and display such Worker data in accordance with applicable law.
  2. Accurate Data. Each Party shall use commercially reasonable efforts to transmit and display complete and accurate Worker data hereunder.
  3. Competence. Pilot represents that it is competent, skillful, and has appropriate experience to deliver the Services in a timely and diligent manner.
  4. Training and equipment. Unless agreed to otherwise, Company shall be solely responsible for providing Workers all equipment, technical, safety, and other applicable training, as shall be determined by Company but which shall in all instances be in compliance with applicable law.
  5. Suppliers. Pilot shall provide the Services through a network of suppliers it has assembled and manages. Pilot will disclose the identity of the suppliers it intends to utilize to deliver the Services. For the avoidance of doubt, Pilot shall be responsible for the compliance of such suppliers with the terms of this Agreement and with applicable law.
  6. Assignment of Intellectual Property. All right, title and interest in and to all Intellectual Property Rights created by Worker in the performance of Services, will be the property of Company, and Pilot hereby transfers and assigns the same to Company. Pilot will execute all papers and take all actions that Company reasonably deems necessary or advisable for the filing and prosecution of patent applications or copyright or other registrations and, if appropriate, maintenance of patents or other rights or properties that may issue therefrom, including without limitation execution of any assignments or other agreements further evidencing Company’s ownership of all Intellectual Property Rights therein or thereto. “Intellectual Property Rights” means the rights in and to all (a) patents and patent applications claiming any inventions or discoveries made, developed, conceived, or reduced to practice, including all divisions, substitutions, continuations, continuation-in-part applications, and reissues, re-examinations and extensions thereof, (b) copyrights, (c) unpatented information, trade secrets, data, or materials, and (d) any other intellectual or other proprietary rights of any kind now known or hereafter recognized in any jurisdiction.

Indemnification

  1. Indemnification. Each Party (“Indemnifying Party”) shall indemnify the other Party (“Indemnified Party”) against all Indemnifiable Losses arising out of any Indemnifiable Proceeding.
  2. Notice and Failure to Notify.
    1. Notice Requirement. Before bringing a claim for indemnification, Indemnified Party shall:
      1. promptly notify Indemnifying Party of the Indemnifiable Proceeding, and
      2. deliver to Indemnifying Party all legal pleadings and documents necessary to defend the Indemnifiable Proceeding.
    2. Failure to Notify. If Indemnified Party fails to notify Indemnifying Party of the Indemnifiable Proceeding, Indemnifying Party shall be relieved of its indemnification obligations to the extent it was prejudiced by Indemnified Party's failure.
  3. Defense.
    1. Right to Defend. In addition to indemnifying Indemnified Party against all Indemnifiable Losses, Indemnifying Party shall defend Indemnified Party against the Indemnifiable Proceeding.
    2. Notice of Defense. To assume the defense, Indemnifying Party must promptly notify Indemnified Party that it is doing so.
  4. Authority to Contest, Pay, or Settle. Indemnifying Party may contest, pay, or settle the Indemnifiable Proceeding without obtaining Indemnified Party's consent, only if Indemnifying Party's decision:
    1. does not require Indemnified Party to make any admission that it acted unlawfully,
    2. does not negatively affect any other legal proceeding against Indemnified Party (as determined in Indemnified Party’s sole judgment),
    3. provides that the claimant's monetary damages are paid in full by Indemnifying Party, and
    4. requires claimant to release Indemnified Party from all liability related to the Indemnifiable Proceeding.
  5. Exclusive Remedy. Indemnified Party's right to indemnification is the exclusive remedy available in connection with the Indemnifiable Proceedings.
  6. Definitions.
    1. “Indemnifiable Proceeding” means any judicial or administrative proceeding, arbitration, action, suit, claim, investigation, or proceeding initiated by a third party against Indemnified Party arising out of this Agreement and:
      1. arising out of Indemnifying Party's act or omission, fraud, negligence, violation of applicable law, or misconduct, or
      2. in connection with a breach of any obligation of the Indemnifying Party hereunder.
    2. “Indemnifiable Losses” means the aggregate of Losses and Litigation Expenses.
      1. “Losses” means any amount awarded in, or paid in settlement of, any Indemnifiable Proceeding, including any interest accrued, but excluding any Litigation Expenses
      2. “Litigation Expense” means any reasonable out-of-pocket expense incurred in defending an Indemnifiable Proceeding or in any related investigation or negotiation, including court filing fees, court costs, arbitration fees, witness fees, and attorneys’ and other professionals’ fees and disbursements.
  7. Limits and Exclusions.
    1. Maximum Indemnifiable Losses. The Maximum Indemnifiable Losses will not exceed 2 (two) times the total amount Company paid (or supposed to pay) Pilot during the 12 months preceding the claim resulting in Indemnifiable Losses under the terms of this Agreement, except in the case of gross negligence, intentional misconduct, fraud, or violation of criminal law (in each such case there shall be no cap on Indemnifiable Losses).
    2. Exclusions.
      1. Indemnifying Party shall not be required to indemnify Indemnified Party against Indemnifiable Losses to the extent Indemnified Party’s act or omission, fraud, negligence, misconduct, violation of applicable law, or breach of this Agreement caused the Indemnifiable Loss at issue.
      2. In connection with the Services, the Company shall be liable for any taxes, payments, or levies that may be required by any tax authority in the country where Services are rendered hereunder, except with respect to those taxes explicitly required to be paid by Pilot as set forth in any Product Specific Terms and any corporate-level taxes relating to Pilot.

Fees and Payment

  1. Amounts Due. The Company shall pay Pilot for the Services as set forth in the Pricing page. Additional services can be provided subject to a written approval of the Company of a special fee. Amounts payable to Pilot are due upon Company’s receipt of the applicable invoice, and are payable as specified on such invoice. Notwithstanding Parties who have already provided notice of termination, we may revise the fees at any time. However, we will provide you with at least 30 days’ advance notice before revisions become applicable to you (or a longer period of notice if this is required by applicable law). In addition to the fees, you are also responsible for any penalties or fines imposed in relation to your use of the Services not permitted by this Agreement, including fees associated with insufficient funds.
  2. Taxes and VAT. The Company shall pay all taxes directly related to the provision of the Services, including, but not limited to, VAT (Value Added Tax) and taxes on services.
  3. Currency. The invoice shall be paid by the Company in U.S. Dollars unless otherwise agreed in writing. In the event the Company makes payment in a different currency than U.S. Dollars, the payment will be converted to U.S. Dollars according to Pilot’s exchange rates and currency policy.

Confidentiality and Title of Information and/or Intellectual Property

  1. Nondisclosure. The Party receiving Confidential Information (“Recipient”) from the other Party (the “Disclosing Party”) agrees not to disclose such Confidential Information to any third parties or to any of its employees, directors, officers, agents, contractors, consultants, advisors, or other representatives (collectively “Representatives”), except those Representatives who have a need to know consistent with the intent of this Agreement. In such instances, the Representatives (i) shall be made aware that the Confidential Information is confidential; and (ii) that such Representatives’ disclosure of the Confidential Information is restricted as set forth herein. Notwithstanding the foregoing, the Recipient may disclose the Disclosing Party’s Confidential Information to the extent required by a valid order of a court of competent jurisdiction or other governmental body, or by applicable law; provided, however, that the Recipient shall use all reasonable efforts to promptly notify the Disclosing Party of the obligation to make such disclosure in advance of the disclosure, unless otherwise prohibited by law or court order, so that the Disclosing Party shall have a reasonable opportunity to object to such disclosure. The Recipient and its Representatives shall cooperate in all reasonable respects with the Disclosing Party in seeking to prevent or limit disclosure; and, in the event that a protective order or other remedy is not obtained, the Recipient shall limit disclosure to the Confidential Information actually required to be disclosed, provided the Recipient exercises its reasonable efforts to obtain reasonable assurances that confidential treatment shall be accorded to the Disclosing Party’s Confidential Information. The Recipient agrees that it shall treat the Confidential Information with the same degree of care as it accords to its own confidential and proprietary information of a similar nature; provided that in no event shall the Recipient exercise less than reasonable care to protect the Confidential Information commensurate with the sensitivity of such information. The Recipient agrees to advise the Disclosing Party in writing of any misappropriation or misuse by any person of such Confidential Information of which the Recipient may become aware.
  2. “Confidential Information” means any information, technical data, or know-how (including, but not limited to, information relating to prices, margins, pay rates, bill rates, Worker data, information or data relating to Pilot’s supplier network, research, products, software, services, development, inventions, processes, engineering, marketing, techniques, customers, pricing, internal procedures, business and marketing plans or strategies, finances, employees and business opportunities) disclosed by the Disclosing Party to the Recipient, either directly or indirectly, in any form whatsoever (including, but not limited to, in writing, in machine readable or other tangible form, orally or visually): (i) that is a trade secret under applicable law; (ii) that has been marked as “confidential” or “proprietary” or similar legend; (iii) whose confidential nature has been made known by the Disclosing Party, orally or in writing, to the Recipient; (iv) that due to its character and nature, a reasonable person under like circumstances would treat as confidential; or (v) discussions relating to such information whether these discussions occur prior to, concurrent with, or following disclosure of such information.
  3. Exclusions. Notwithstanding Sections 9.1–9.2 above, Confidential Information does not include, or shall cease to include, information or material that the Recipient can demonstrate by then-contemporaneous written records: (i) is in the Recipient’s possession at the time of disclosure as shown by the Recipient’s files and records immediately prior to the time of disclosure; (ii) before or after it has been disclosed to Recipient, becomes part of public knowledge or literature, not as a result of any action or inaction of the Recipient; (iii) is approved for release by written authorization of the Disclosing Party (or, as applicable, by the Worker); (iv) is disclosed to the Recipient by a third party not in violation of any obligation of confidentiality; or (v) is independently developed by the Recipient without reference to Confidential Information;

Term, Termination, and Survival

  1. Term. This Agreement is effective upon the date you first access or use the Services and continues until terminated by you or Pilot (“Term”). You may terminate this Agreement by closing your Pilot Account at any time by opening the account information tab in your account settings, selecting “close my account” and ceasing to use the Service. If you use the Services again or register for another Pilot Account, you are consenting to this Agreement. We may terminate this Agreement or close your Pilot Account at any time for any reason by providing you Notice. We may suspend your Pilot Account if Company: (a) fails to pay any amount when due under this Agreement; or (b) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
  2. Rights and Duties upon Termination.
    1. All Confidential Information, data, and other property belonging to one Party shall be the exclusive property of such Party and shall be delivered to such Party, and not retained by the other Party (including, without limitations, any copies thereof), promptly upon request by such Party and, in any event, promptly upon termination of this Agreement.
    2. The Company acknowledges that Pilot shall have no obligation to terminate Workers in violation of applicable law. To the extent a Worker or Workers must remain employed for purposes of complying with applicable law (e.g., contractual notice requirements), Pilot shall terminate such employees as soon as applicable law otherwise permits. During the time period of such employment, this Agreement shall remain in effect with respect to such Worker or Workers.
  3. Survival of Obligations. The rights and obligations which expressly or by their nature are intended to survive the termination of this Agreement shall so survive and bind the Parties and their legal representatives, successors, and assigns.

Governing Law/Consent to Jurisdiction and Venue.

  1. Governing Law/Consent to Jurisdiction and Venue. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal or state courts located in San Francisco, California and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.

General

  1. Entire Agreement. This Agreement, the Recitals, Product Specific Terms, and any future amendment to this Agreement (collectively, the “Agreements”) constitutes the entire and only agreement between the Parties relating to the subject matter set forth in the Agreements, and shall supersede and replace all prior negotiations, agreements, and understandings relating thereto.
  2. Conflict. To the extent of any conflict between this Agreement and any other agreement between the Parties, this Agreement shall supersede such other agreement to the extent of such conflict except if such other agreement explicitly states otherwise. However, to the extent of any conflict between this Agreement and any Product Specific Terms, the Product Specific Terms shall supersede this Agreement to the extent of such conflict.
  3. Headings. Sections headings are for convenience only, and shall not be used for the purpose of interpreting this Agreement.
  4. Equal Bargaining Power. The Parties have equal bargaining power to each other. This Agreement is not intended to create an employer-employee relationship between any of the following: (i) Pilot, and any of the Company’s employees; (ii) the Company, and any of Pilot’s employees; or (iii) any person who (a) performs services for or on behalf of the Company and (b) is managed on Pilot’s Platform for the benefit of Company hereunder ((a) and (b) collectively the “Worker”), and Pilot. This Agreement is not intended to create an agency relationship, joint venture, or partnership. Neither Party is granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf of or in the name of the other Party, with regard to any manner or issue whatsoever, unless otherwise specifically agreed upon in writing.
  5. Modifications. No modifications of this Agreement or waiver of any of its terms shall be effective unless set forth in writing signed by the Party against whom it is sought to be enforced. Failure by either Party to require the other Party’s performance of any of the terms of this Agreement, or waiver by either Party of any breach of this Agreement by the other Party shall not prevent subsequent enforcement of such term or be deemed a waiver of any subsequent breach thereof.
  6. Assignment. The rights of a Party under this Agreement shall not be assignable in whole or in part, without the other Party’s prior written consent, which such consent shall not be unreasonably withheld.
  7. Severability. Should any part or provision of this Agreement be held unenforceable or in conflict with the applicable laws or regulations of any applicable jurisdiction, the invalid or unenforceable part or provision shall, provided that it does not go to the essence of this Agreement, be severed from this Agreement to the extent required, and the balance of this Agreement shall remain in full force and effect and binding upon the Parties.

Disclosures and Notices; Electronic Signature Consent

  1. Consent to Electronic Disclosures and Notices. By registering for a Pilot Account, you agree that such registration constitutes your electronic signature, and you consent to electronic provision of all disclosures and notices from Pilot (“Notices”), including those required by law. You also agree that your electronic consent will have the same legal effect as a physical signature.
  2. Methods of Delivery. You agree that Pilot can provide Notices regarding the Services to you through our website or through the Pilot Platform. Notices may include notifications about your Pilot Account, changes to the Services, or other information we are required to provide to you. You also agree that electronic delivery of a Notice has the same legal effect as if we provided you with a physical copy. We will consider a Notice to have been received by you within 24 hours of the time a Notice is either posted to our website or the Pilot Platform.
  3. Requirements for Delivery. It should come as no surprise to you that you will need a computer or mobile device, Internet connectivity, and an updated browser to access the Pilot Platform and review the Notices provided to you. If you are having problems viewing or accessing any Notices, please contact us and we can find another means of delivery.
  4. Withdrawing Consent. Due to the nature of the Services, you will not be able to begin using the Services without agreeing to electronic delivery of Notices. However, you may choose to withdraw your consent to receive Notices electronically by terminating your Pilot Account.