ADDITIONAL TERMS AND CONDITIONS
Tax Identification Numbers: Client shall obtain and maintain all necessary and proper employee tax identification numbers for its own tax reporting and obtain and maintain any necessary tax forms and information from its employees and shall promptly forward this information to Company within 48 hours of receipt.
Tax Reporting and Payments: Client hereby authorizes Company to prepare and file tax reporting for Client as well as make required payments of any type on its behalf, Client further designates Company and its selected TPP, as a limited agent to act on its behalf for such purposes.
Confidentiality:
A. Confidential Information: The term “Confidential Information” means (a) the terms and conditions of this Agreement including but not limited to pricing and (b) a Party’s information, data, knowledge and knowhow (in whatever form and however communicated) relating directly or indirectly to that Party (or to its affiliates or contractors, or to its or their respective businesses, employees, operations, properties, products, markets or financial positions) that is delivered or disclosed by such Party, or any of their respective officers, directors, partners, members, employees, contractors, agents or shareholders to the other party in writing, electronically, orally or through visual means, or that such receiving Party learns or obtains orally, through observation or analyses, interpretations, compilations, studies or evaluations of such information, data, knowledge or know-how and is identified at the time of disclosure as confidential, with respect to written materials and with respect to other information, in writing or orally, and (c) any information that would be reasonably deemed to be confidential when considering the nature of such information and the circumstances surrounding its disclosure. The Company’s Confidential Information includes, but is not limited to: (i) non-public information not known by actual or potential competitors of the Company, its affiliates, or subsidiaries, if any; (ii) any proprietary information owned or held by or on behalf of the Company, including but not limited to any patents, patent applications, patent disclosures, trademarks, service marks, trade dress, logos, trade names, domain names, corporate names, copyrights, copyrightable works, trade secrets, inventions, innovations, know-how, show-how, formulas, knowledge, compositions, computer code, source code, processes and techniques, methods, results, schematics, technology, technical data, designs, drawings, flowcharts, block diagrams, specifications, ideas, concepts, projections, procedures, proposals, financial records, client lists, prospective client lists, vendor lists, referral partner lists, pricing standards and strategies, business plans, sales and marketing strategies, contracts with any of the Company’s advertisers, vendors, or employees, and software/firmware (including data, databases, and related documentation); (iii) information designated as or otherwise considered by the Company to be confidential; (iv) proprietary or confidential information of the Company’s distributors, vendors, referral sources, joint venturers, licensors and licensees, clients, and other third parties with whom the Company does business, including without limitation all third party proprietary or confidential information that the Company is obligated to keep confidential; (v) any Personal Information, as defined by M.G.L. c. 93H, § 1 and 201 CMR 17.02, of any of the Company’s other clients, whether past, present, or prospective; and (vi) any and all documents, electronic databases, or other materials containing any information within the scope of subparagraphs (i) through (v) above, including memoranda, e-mail messages, computer disks and printouts, rolodexes, handwritten or computer-printed notes, tapes, videos, recordings and correspondence, and/or maintained in the Company’s Customer Relationship Management (“CRM”) systems.
B. Work Product: The content of all Client specific written material shall be the sole and exclusive property of Company. Such work product does not include Company’s preexisting proprietary forms or templates and generic modifications or enhancements thereto. The Company warrants that its work product is in accordance with all applicable federal, state and local laws as of the date such work product is produced.
C. Disclosures: Each Party shall keep the Confidential Information communicated to it by the other Party confidential and shall not disclose such in- formation or provisions to any third party without the prior written approval of the other Party, except that either Party may disclose such information to the extent required by law or demand under lawful process. If a Party is required by law or demand under lawful process to disclose the other Party’s Confidential Information, then prior to making such disclosure the disclosing Party shall notify the other Party and provide the other Party with a copy of any document request, subpoena, or court order pertaining to such disclosure at least seven (7) business days prior to making such disclosure, unless the request, subpoena, or order does not permit seven (7) days’ notice prior to disclosure, in which case the Party shall provide the other Party with as much advance notice as is possible in order to permit the other Party to obtain a protective order or to otherwise protect its rights in the Confidential Information. The rights and remedies provided in this paragraph are not exclusive and are in addition to any other rights and remedies provided by law or under this Agreement. The provisions of this paragraph and all other paragraphs under the heading “Confidentiality” will survive the termination of this Agreement.
Third-Party Processors: Client acknowledges and agrees that Company utilizes select Third-Party Processors (“TPP”) in connection with the Services contemplated hereunder. These TPP include Originating Deposit Financial Institutions (“ODFI”), data integration services, employee benefit tracking, credit services and payroll tax processors and payment orchestrations platforms and other TPP reasonably necessary to comply with applicable Federal, state and industry rules and regulations and/or best practices. Client further acknowledges and agrees that Company may collect information and documentation reasonably necessary to comply with applicable “know your client” rules and regulations and that Company may share such information as may be reasonably necessary to effectuate Client’s employee benefit programs and that Company shall not be liable for any damages, penalties, fees or other charges resulting from any delays or errors caused by the TPP.
Third-Party Software Providers: Client further acknowledges and agrees that Company may utilize certain Third-Party Software Providers (“TPSP”) in providing the Services. This section contains certain terms and conditions governing Client’s use of any TPSP’s software (the “Applications”) or any on-line help, guides or manuals published by the Third-Party Software Provider from time to time pertaining to the Applications (the “Documentation”) in connection with Client’s receipt of the Services. Client’s right to use the Applications and Documentation is subject to Client’s compliance with and consent to the following terms and conditions.
A. Ownership of the Applications: The Applications are owned by the TPSP. All intellectual property rights in and to the Applications are owned by the TPSP. The Applications are protected by copyright laws, as well as other intellectual property laws. Client’s use of the Applications does not transfer any ownership of the Applications or any other intellectual property rights to Client.
B. Use of Applications: Client may use the Applications only in connection with the Services provided to Client by Company. In connection therewith, Company hereby grants Client a limited, non-exclusive, non-transferable right to use the Applications and the Documentation during the term of Client’s Agreement with Company. Client acknowledges that the TPSP is a third-party beneficiary of the Company’s rights with respect to the Client’s use of and/or rights related to the Applications.
C. Limitations on Use of the Applications: Client acknowledges and agrees that the Applications and the Documentation are the property of the TPSP (and, if and as applicable, its licensors) and that Client has no rights or interests in or to the Applications or the Documentation other than the rights expressly granted to Client by Company. Client agrees that it shall not (i) change, modify, reverse engineer, disassemble, decompile or otherwise attempt to derive the source code of the Applications; (ii) remove the TPSP’s proprietary legends, trademarks or branding from the Applications or the Documentation; (iii) use the Applications other than in the course of receiving the Services from Company; (iv) sublicense, rent, lease, lend, pledge, or directly or indirectly transfer or distribute the Applications to any third party or use the Applications for time-sharing, outsourcing or service bureau use; or (v) use the Applications for other than internal business purposes. Client agrees that any use, copying, distribution or exploitation of the Applications that is not expressly authorized is deemed forbidden. Additionally, Client acknowledges that Client may only use and/or access the Applications in machine-readable, executable, object-code form.
D. Confidential Information: Client agrees that, in connection with its use of the Applications and/or the Documentation, Client may receive or have access to confidential or proprietary information of the TPSP. Client agrees that it shall not, except as otherwise required by law, use or disclose any confidential information related to the Applications and or the Documentation without the prior written consent of the TPSP. Client further agrees to exercise reasonable care to maintain in confidence the confidential information of the TPSP.
E. No Warranties, Liabilities or Remedies by Third Party Software Provider: Client hereby acknowledges and agrees that any representations and warranties being made to Client with respect to the Applications and/or the Documentation are being made by Company, and not by the TPSP. Without limiting the generality of the foregoing, Client acknowledges and agrees that the TPSP is not making any representations or warranties to Client with respect to the Applications or the Documentation including, without limitation, any liabilities with respect to title, non-infringement, merchantability, or fitness for any particular purpose. CLIENT FURTHER ACKNOWLEDGES AND AGREES (I) THAT COMPANY IS NOT AN AGENT OF THE TPSP AND THAT THE TPSP AND COMPANY ARE NOT AFFILIATES, PARTNERS, PARTIES TO A JOINT VENTURE OR OTHERWISE RELATED; (II) THAT THE TPSP IS NOT ENTERING INTO ANY CONTRACTUAL OR OTHER BUSINESS RELATIONSHIP WITH CLIENT (OR ANY OF ITS EMPLOYEES); (III) THAT THE TPSP WILL NOT PROVIDE ANY SERVICES TO CLIENT (OR ANY OF ITS EMPLOYEES); (IV) THAT COMPANY HAS NO RIGHT, POWER OR AUTHORITY TO CREATE ANY OBLIGATION OR RESPONSIBILITY ON BEHALF OF TPSP; AND (V) THAT THE TPSP SHALL NOT BE RESPONSIBLE OR OTHERWISE HAVE ANY LIABILITY TO CLIENT (OR ANY OF ITS EMPLOYEES). WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CLIENT ACKNOWLEDGES AND AGREES THAT THE TPSP SHALL NOT BE LIABLE OR RESPONSIBLE TO CLIENT (OR ANY OF ITS OFFICERS, DIRECTORS, AGENTS OR EMPLOYEES) IN ANY MANNER WHATSOEVER FOR ANY CAUSE, CLAIM, CAUSE OF ACTION, LOSS, DAMAGE OR EXPENSE ARISING OUT OF, RESULTING FROM OR OTHERWISE RELATING TO CLIENTS USE OF THE APPLICATIONS OR THE DOCUMENTATION.
F. Product Support: Any technical assistance, product support, maintenance or other services that Client may be entitled to receive with respect to the Applications and/or the Documentation shall be provided to Client by Company. The TPSP shall not be required to provide Client with any technical assistance, product support, maintenance or other services with respect to the Applications or the Documentation.
G. Compliance with Law: Client represents and warrants that it will comply with all applicable federal, state and local laws, rules and regulations in connection its use of the Applications and the Documentation including, without limitation, all applicable privacy laws and regulations and all applicable export control laws and regulations.
H. Liability for Breach: In addition to any liability Client may have to Company, Client agrees that it will also be legally responsible to the TPSP directly for any breach of these terms and conditions, and Client acknowledges that the TPSP may enforce its rights as a third-party beneficiary against the Client.
Third-Party Authorization: Company acknowledges that Client may, from time to time, have a legitimate need for Company to share, send, transfer, transmit or otherwise disclose certain information and documents concerning the Client and/or the Client’s Employees (“Employee Information”) to Designated Third-Parties for a lawful purpose (“Designated Third-Parties”). The Client hereby authorizes the Company to make such disclosures (the “Third-Party Authorization”). Unless otherwise agreed to by both Parties in a separate writing, this Third-Party Authorization shall also authorize the Company to disclose any Personal Information of the Client’s employees to the Designated Third Party, where the Personal Information is contained within the Employee Information to be disclosed. Personal Information, as defined under M.G.L. c. 93H and 201 CMR 17.00, et seq., includes any Employee’s Social Security number, driver’s license number, state-issued identification card number, financial account number, or credit/debit card number.
Unless otherwise agreed to by both Parties in a separate signed writing, this Third Party Authorization also authorizes the Company to disclose the Employee Information in any form, including but not limited to all written, printed, typed, or other graphic matter, and all information that is stored in an electronic medium, whether or not prepared by the Client, and all copies and drafts of the aforementioned, whether or not identical to the original. This also includes, without limitation, all documents, emails, correspondence, memoranda, certificates, notes, books, manuals, financial statements, papers, schedules, drawings, writings, calendars, logs, time records, microfilms, transcripts, recordings, tapes, files, offers, contracts, agreements, worksheets, time cards, compilations, graphs, charts, bills, statements, invoices, receipts, confirmations, applications, checks, photographs, reports, social media posts, sound recordings, videos, images, any data or data compilations, printouts, and all other records and papers of any nature whatsoever that contain the Employee Information.
Unless otherwise agreed to by both Parties in a separate signed writing, this Third-Party Authorization shall permit the respective managers, members, officers, directors, employees, partners, agents, and any other individual or entity acting on behalf of either Company or the designated Third-Party to disclose and receive Employee Information on the terms set forth above.
Unless otherwise agreed to by both Parties in a separate signed writing, Company may disclose the Employee Information to designated Third-Party through any means, including but not limited to orally, electronically, visually, or by writing, mail, facsimile, or hand delivery.
This Third-Party Authorization shall continue in effect unless and until the Client specifically revokes said authorization as set forth herein. If the Client intends to revoke the authorization, the Client must first provide Company at least ten (10) days’ prior written notice of the intended revocation. The Client acknowledges that Company is not liable for: (1) the disclosure of the Employee Information to the Third Party during the notice period; or (2) the transfer of the Employee Information to another party (such as a mail courier) during the notice period, where such transfer is for the purpose of delivering the Employee Information to the Third Party, and where the Employee Information is not actually received by the Third Party until after the expiration of the notice period.
To the extent that it is unclear whether a particular document or information is within the scope of the Client’s authorization, Company shall seek clarification from the Client on this issue prior to disclosing said document or information to the Designated Third-Party. If the Client does not timely respond to such a request for clarification or otherwise provide an adequate answer, Company will make a good faith determination as to whether said document or information is subject to disclosure. Company will also take reasonable steps to ensure that the Employee Information is not disclosed to any unauthorized individual or entity during the process of disclosure to the Designated Third Party, particularly where the disclosure contains sensitive information. Company will also place reasonable restrictions upon physical access to any records containing Personal Information. As soon as practicable and without unreasonable delay, Company will provide notice to the Client if Company knows or has reason to know: (1) that a breach of security concerning the Personal Information of a Client Employee has occurred; or (2) the Personal Information of a Client Employee was acquired or used by an unauthorized person or used for an unauthorized purpose. As used herein, “breach of security” is defined by M.G.L. c. 93H.
By granting this Third-Party Authorization, the Client represents and warrants that disclosure of Employee Information to the designated Third-Party is a legitimate need of the Client, for a lawful purpose, and that such disclosure is, to the best of the Client’s knowledge, lawful under all applicable state and federal laws, including M.G.L. c. 93H and 201 CMR 17.00, et seq. The Client acknowledges that where Company has made a disclosure to the Designated Third-Party pursuant to the terms of this Agreement and this Third-Party Authorization contained herein, Company is not liable for any further disclosure by the Designated Third-Party to any unauthorized individual or entity.
By granting this Third-Party Authorization, the Client represents and warrants that the Client has received any requisite consent, authorization, acknowledgment, release, or approval from its Employees that is necessary in order for the Employee Information to be lawfully disclosed to the designated Third Party.
Nothing in this Agreement shall be construed to prevent Company from disclosing information as required by law or legal process.
Additional Third-Party Services: Client acknowledges and agrees that Company’s Third-Party Software Providers may provide additional related services to the Client. Client may opt out of any such services in accordance with the terms and requirements of the TPSP.
Customer Service: Client acknowledges and agrees that Company may monitor and record calls and other communications between Client and Company for training and customer service purposes.
Uncashed Payroll Checks: Client acknowledges and agrees that Company will use its best efforts to return funds from uncashed payroll checks drawn on Company’s accounts to the Client 180 days after said payroll checks are issued or quarterly thereafter and within a reasonable time upon termination of this Agreement.
Human Resources Consulting Services: Client acknowledges and agrees that Company may, in the course of providing the services contemplated hereunder, provide human resources consulting services for an additional fee. Client further acknowledges and agrees that Company does not provide legal services and that applicable law concerning employee wages and benefits vary from state to state and are frequently amended. Client further acknowledges and agrees that it will consult with a lawyer of its own choosing regarding its policies and procedures as they relate its employment practices and benefit plans.
Indemnification:
A. Company and Client agree that, to the greatest extent permitted by applicable law and except as otherwise provided below, Client shall defend, indemnify and hold harmless the Company and its current and former shareholders, employees, attorneys, officers, board members, directors, partners, agents and representatives (each, an “Indemnified Party”) from and against any and all claims, suits, charges, petitions, demands, government investigations, damages (including liquidated, punitive and compensatory), injuries, deaths, actions and causes of action, costs and expenses, including attorney’s fees and expenses, and all other consequences of any kind, whether known or unknown, brought against an Indemnified Party arising out of or in connection with Client’s respective obligations in connection with this Agreement. The indemnification provisions of this section shall also apply to any claim brought against the Company or any of its aforementioned agents arising out of or in connection with the disclosure of Employee Information by the Company to a DesignatedThird Party or other third party authorized by the Client, including but not limited to any claim of invasion of privacy or a violation of M.G.L. c. 214, § 1B, M.G.L. c. 93H, or the HIPAA Privacy Rule. Each Party agrees to cooperate with the other in the defense of any such claim or other matter.
B. All indemnifications are and shall be deemed to be contractual in nature and shall survive the termination or expiration of this Agreement.
C. Client shall not be required to defend, indemnify or hold harmless the Company and/or its current and former shareholders, employees, attorneys, officers, board members, directors, partners, agents and representatives, from any liability resulting from the negligence or wrongful acts of the Company.
D. Each of Company and Client agrees to give the other prompt written notice of any claim or other matter as to which it believes any provision of any paragraph under the heading “Indemnification” is applicable.
Liability: If Client suffers direct losses as a direct result of Company’s failure to perform its obligations with regard to the providing of payroll processing or human resources-related Services set forth in the this Agreement, Company shall be liable to Client only for direct damages suffered by Client, which shall not include any damages relating to or arising from the delay or failure of Client or a third party provider engaged by Client, to provide on a timely basis, accurate and complete data and information, or the delay or failure of Client to meet any obligation under this Agreement, required for the proper performance of such Services; and provided further, that Company shall have used commercially reasonable efforts to (a) perform notwithstanding such unavoidable delay or failure and (b) mitigate the nature, extent and duration of any failure by Company to so perform. Client shall be solely responsible and liable for any and all other matters of every kind related to its Employees, including but not limited to compliance with all applicable wage and hour and other state and federal employment laws. Nothing in this Section shall in any way diminish the relationship, obligation, liability, and responsibility of the Parties individually and collectively toward each other as more specifically set forth in Non-Waiver Section below. Notwithstanding the above, the Company’s liability in any instance is not greater than the amount it is entitled to receive for the services being rendered. IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING ANY LOSS OF PROFITS, SAVINGS OR DATA INCURRED BY THE OTHER PARTY, ITS AFFILIATES OR ANY THIRD-PARTY, REGARD-LESS OF WHETHER SUCH PARTY HAS BEEN ADVISED, KNOWS OR SHOULD KNOW OF THE POSSIBILITY OF SAME.
Dispute: Should any disputes arise between the Parties to this Agreement, including, but not limited to, disputes regarding the interpretation or meaning of the terms and conditions of this Agreement or any details concerning the Services, the quality of the Services, and the completion of Services, such disputes shall be referred for final determination to arbitration pursuant to the American Arbitration Association. This provision does not apply to disputes where the Company is seeking the collection of past due amounts, late fees, accrued interest and reasonable attorneys’ fees and costs of collection from Client or when the Client has allegedly violated the Non-Solicitation provisions of this Agreement, or there is any surviving claim for injunctive relief.
Force Majeure: The Company shall not be responsible for loss or damages which occur as a result of failure to perform, or a delay in performing, any obligation of the Company under this Agreement due to acts of God, acts of war, acts of terrorism, government action or measures of any government authority, epidemic, pandemic, telephone service and/or electronic disruption, Internet disruption or similar force majeure events beyond the Company’s reasonable control. If such a force majeure event occurs, the Company’s duties and obligations under this Agreement may be modified, suspended, or postponed until such time as the Company, in its sole discretion, may safely resume its duties and obligations. By signing below, Client acknowledges and agrees that the sole financial remedy for a force majeure event is future delivery of Services as soon as practicable after the force majeure condition ceases to exist.
Compliance with Laws and Regulations: Company shall at all times during the term of this Agreement remain in compliance with all applicable legal requirements, including applicable federal, state, provincial and local laws, regulations, ordinances and codes, necessary for Company to be able to perform the Services and other obligations hereunder, including any required licenses, permits or registrations.
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