TERMS AND CONDITIONS OF SALE/PROPOSAL

Our terms and conditions have changed. If you purchased Trackforce Valiant software and services prior to November 5th, 2020, please refer to the terms and conditions at this link:
Terms and Conditions (prior to November 5, 2020)

This Trackforce Valiant SaaS Agreement, together with all applicable Exhibits hereto and all Schedule(s) (as defined below) entered into hereunder (collectively, the “Agreement”), is entered into between RTM Soft, Inc. (“RTM” or “Trackforce”) and Valiant Payroll Services, Inc. (“Valiant”), as applicable, and the “Customer” identified below. RTM and Valiant are sometimes collectively referred to herein as “Trackforce Valiant” or “TFV”). The Agreement shall constitute a binding agreement between TFV and Customer.

 

1. Definitions. Capitalized terms used and not otherwise defined in this Agreement shall have the meaning set forth below.
1.1. “Active Employee” shall mean, with respect to a given period, any employee of Customer (or any other person performing services for Customer (such as an independent contractor)) who is included in, uses or accesses the Services in any way during such period.
1.2. “Affiliate” means a legal entity separate from and controlled by or under common control with the either party. For purposes of this Agreement, the term “control” shall mean ownership of a beneficial controlling interest.
1.3. “Customer” shall mean the customer entity indicated on the applicable Schedule/Proposal(s), and any additional affiliated customer entities for whom Customer has engaged TFV to provide Services. In the event that Customer shall be comprised of more than one legal entity, then this Agreement shall apply to each such legal entity receiving Services.
1.4. “Customer Data” shall mean any data, information, content and materials provided by Customer to TFV in the course of using the Services.
1.5. “Documentation” shall mean all written or electronic materials provided to Customer by TFV for facilitating use of the Services, as applicable, but does not include advertising or similar promotional materials.
1.6. “Effective Date” shall mean the effective date of this Agreement.
1.7. Equipment. shall mean provided by TFV to Customer from time to time for use in connection with the Services. Such Equipment may be provided on a purchase, lease, rental or other basis. Equipment shall be provided, if and as applicable, by TFV pursuant to this Agreement, the terms of the applicable Schedule/Proposal(s), and the terms of such additional documents as may be provided by TFV for that purpose from time to time.
1.8. “Force Majeure” shall mean events outside of the control of TFV, such as, but not limited to, acts of war, natural disasters, fires, extended power, electrical or Network outages, acts of vandalism or pandemics, which render the Services temporarily unavailable or permanently affect or prevents performance under this Agreement.
1.9. “Intellectual Property Rights” shall mean all copyrights, trade secrets, patents, trademarks, and other intellectual property rights or portion thereof including, but not limited to, the ideas, methodologies, methods of operation, processes, and look and feel in the SaaS Services.
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1.10. “Network” means the Internet, phone network, cell phone network, and other transmission methods by which the SaaS Services are delivered.
1.11. “Party” or “Parties” shall mean TFV or Customer, individually or collectively.
1.12. “Payroll Services” shall mean those payroll services to be provided by TFV to Customer, if and as set forth on the Schedule/Proposal(s). Payroll Services shall be provided, if and as applicable, by Valiant Payroll Services, Inc. pursuant to the Payroll Services Terms and Conditions that are attached hereto as Exhibit F.
1.13. “Production Environment” means an environment provided in the SaaS Services which Customer uses for live processing.
1.14. “Related Systems” shall mean Customer owned or operated computers, web-browsers, operating systems, firewalls, e-mail servers, LDAP servers, portals, Networks, third party software, internet connection, and any other Equipment or software that connects to the SaaS Services or affects the SaaS Services.
1.15. “SaaS Service” or “SaaS Services” means the provision of access to and use of one or more components of the TFV software as a service platform, together with the provision of updates and upgrades, and related services including maintenance and support, all in accordance with this Agreement and the applicable Schedule(s). SaaS Services may include the following: (i) GuardTek SaaS Services (including the GuardTek Guarding SaaS Service and the GuardTek Analytics SaaS Service), both of which are provided by RTM Soft, Inc.; and (ii) Smartforce SaaS Services (including the Smartforce HR Management SaaS Service and the Smartforce Time & Labor Management SaaS Service), both of which are provided by Valiant Payroll Services, Inc.
1.16. “SaaS Software” means the software of TFV that is used to provide the SaaS Services, together with all TFV modifications, customizations, updates, add-ons and interfaces (including APIs) thereof or thereto.
1.17. “Schedule/Proposal” means one or more written orders listing the Services to be delivered to the Customer hereunder that is signed by both TFV and the Customer and references this Agreement. A form template of the Schedule/Proposal is attached as Exhibit A. Upon acceptance by both Customer and TFV, an accepted Schedule/Proposal is sometimes referred to herein as a Schedule. All applicable Schedule(s) are incorporated into this Agreement by reference and shall constitute a part hereof. If any terms of a Schedule/Proposal shall conflict with terms of the Agreement, the terms of the Schedule/Proposal will prevail.
1.18. “Service Level Agreement” or “SLA” means the service level agreement applicable to the SaaS Services that is attached hereto as Exhibit E.
1.19. “Services” shall refer to SaaS Services and Payroll Services provided under Schedule(s) issued under this Agreement.
1.20. “Start Date” shall mean, with respect to a given Service, the date upon which TFV (or Third Party Provider) shall begin providing the Service to Customer, as specified on the Schedule/Proposal(s) pertaining to such Service.

 

2. Services Delivered
2.1. TFV shall provide to Customer the Services selected by Customer on the Schedule(s) for the term specified on the Schedule(s).
2.2. TFV shall provide access to the applicable SaaS Services to Customer via the Network as specified in the Schedules. Any use of the SaaS Services prior to the Start Date specified in the Schedule(s) shall be considered a trial period during which the SLA shall not apply. Within the Production Environment, Customer may use only the applications and extensions specified in the Schedule(s), even if other applications and extensions are made available.
2.3. TFV, without prior notice, may periodically update the SaaS Services, but makes no representations as to the frequency of new releases or the features, enhancements, or corrections that will be provided in the updates.
2.4. Customer shall only provide access to the SaaS Services to its own employees, consultants, and other authorized users and shall not make the SaaS Services available to third parties or make it available on a service bureau, timesharing, or outsourcing basis.
2.5. TFV shall take commercially reasonable measures, consistent with those in the industry, to prevent unauthorized parties from gaining (a) physical access to the data center(s) where the SaaS Services are hosted, and (b) electronic access to the SaaS Services or Customer Data. TFV shall promptly notify Customer of any unauthorized access to any Customer Date on the SaaS Services that TFV detects.
2.6. TFV shall periodically backup the Customer Data (“Backup Services”) as specified in the SLA. TFV will undertake commercially reasonable steps to begin the restoration of Customer Data as specified in the SLA. TFV shall not be responsible if Customer Data is lost or corrupted in between scheduled backups or for a reason caused by the acts or omissions of Customer. Customer Data shall not be used by TFV for any other purpose except to provide the services contemplated under this Agreement and as otherwise set forth in any applicable TFV Privacy Policy.
2.7. In the event of a Force Majeure event, TFV shall make commercially reasonable efforts to restore the SaaS Services at an alternate facility as soon as feasible. Until such Force Majeure event shall have passed, the SaaS Services may be provided on a reduced use basis and may require Customer to make changes to the procedures used to access the SaaS Services. Neither party shall incur any liability to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement, where such delay or failure is caused, in whole or in part, by a Force Majeure event. If a party asserts a Force Majeure event for failure to perform the party’s obligations, then the asserting party shall notify the other party of the event and take commercially reasonable steps to minimize the delay or damages caused by the Force Majeure event.
2.8. TFV shall provide the Support Services specified in the SLA. The SLA description attached as Exhibit E provides details of the service levels and items provided under each service level. Terms of the Support Plan supersede the terms in this Agreement.
2.9. If applicable, TFV will provide Equipment Support and Maintenance Services as specified in Exhibit D.
2.10. If applicable, and as ordered by the Customer, TFV will provide the Payroll Services, with the accompanying Payroll Services Terms and Conditions, as specified in Exhibit F.
2.11. Certain third party providers (“Third Party Providers”) may offer services (“Third Party Services”), software (“Third Party Software”), and/or equipment (“Third Party Equipment”) related or connected to the SaaS Services, the SaaS Software, and/or the Equipment or that work in conjunction with the SaaS Services, the SaaS Software, and/or the Equipment. Except as expressly set forth herein, TFV does not warrant and is not responsible for any such Third Party Services, Third Party Software, or Third Party Equipment and any exchange of data or other interaction between Customer and a Third Party Provider and any purchase or license by Customer of Third Party Services, Third Party Software, or Third Party Equipment is solely between Customer and such Third Party Provider.

 

3. Customer Responsibilities
3.1. SaaS Software License. TFV hereby grants to Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to use the software constituting the SaaS Services (collectively, the “SaaS Software License”) on a SaaS basis for so long as Customer receives the SaaS Services. Customer may only use the SaaS Software for its own internal business operations. Customer shall not, directly or indirectly, (i) change, copy, modify, reverse engineer, disassemble, decompile any of the SaaS Software or any of the other intellectual property in connection to this Agreement; or (ii) sublicense the SaaS Software for time-sharing, outsourcing or service bureau use.
3.2. Customer shall be responsible for entering its Customer Data into the Services and Customer shall be responsible for the maintenance of the Customer Data supplied by it. Customer represents and warrants to TFV that the Customer Data is free of all viruses, Trojan horses, and comparable elements which could harm the systems or software used by TFV or its subcontractors to provide the Services. Customer agrees that it has collected and shall maintain and handle all Customer Data in compliance with all applicable data privacy and protection laws, rules and regulations.
3.3. Customer has sole responsibility to maintain the integrity, confidentiality and availability of information on Customer equipment.
3.4. Customer has sole responsibility to (a) check the accuracy of information processed using the Services, (b) run all normal processes and procedures within the Services such as end of period processing, imports, exports, and file transfers, and (c) manage and configure its Related Systems and ensure they operate properly. When using and applying the information generated by the Services, Customer is responsible for ensuring that Customer complies with the applicable requirements of federal and state law. Customer agrees: (i) using the Services does not release Customer of any professional obligation concerning the preparation and review of such reports and documents, and (ii) Customer does not rely upon TFV or the Services for any advice or guidance regarding compliance with federal and state laws or the appropriate tax treatment of items reflected on such reports or documents.
3.5. Customer assumes all responsibilities and obligations and expertise with respect to (a) the selection of the Services to meet its intended results, and (b) any decision it makes based on the results produced by the Services. Customer understands and acknowledges that neither TFV nor any Third Party Providers (if applicable) are engaged in rendering legal, accounting, tax or other professional advice either as a service, or through the Services, and that Customer it is not relying on TFV or any Third Party Providers for any advice or guidance regarding laws and regulations. Customer shall review all calculations and determinations made using the Services and satisfy itself those results are accurate. If legal, accounting, tax or other expert assistance is required, the services of a competent professional will be sought by Customer. To the extent permitted by law, Customer shall indemnify and hold TFV harmless from claims and demands of its employees or former employees arising from the use by Customer of the Services.
3.6. Customer is solely responsible to ensure Related Systems operate properly. The support provisions of this Agreement do not apply to Related Systems or problems in the SaaS Services caused by Related Systems, regardless of who provided, installed, or distributed the Related Systems. Should TFV identify that the root cause of a problem is caused by Customer modifications to the SaaS Services or behavior in Related Systems it shall notify Customer and request approval to provide additional assistance (if applicable). Should Customer give its approval, the additional time spent by TFV after such approval shall be billed to customer on a time and materials basis at the then current rates.
3.7. Customer shall change all passwords used to access the Services at regular intervals. Should Customer learn of an unauthorized third party having obtained knowledge of a password, Customer shall inform TFV thereof without undue delay and promptly change the password. Customer will terminate old users in the Services.
3.8. Customer is responsible for monitoring user access to the Services.
3.9. Customer is responsible for the connection to the SaaS Service, including the Internet connection.
3.10. If Customer uses phone and data services (“Mobile Services”) that are purchased in the name of TFV, Customer is responsible for abiding by and adhering to the following restrictions:
3.10.1. Customer will only use such phone and data services for use of the SaaS Services as stated in this SaaS Agreement.
3.10.2. Customer will not abuse or misuse the services as provided under these Mobile Services.
3.10.3. Customer will be responsible for any and all charges that are incurred in activities unrelated to the SaaS Services.
3.10.4. Customer will abide by all local and country laws when using Mobile Services, including not using the Mobile Services for unsolicited advertisements, fraudulent or misleading calls, or threats.
3.10.5. Customer is solely liable for any violation or misuse as noted in this Section 3.9, and will pay any and all fines, penalties, fees, and legal costs associated with defending, settling, and resolving such violations or misuse.
3.10.6. Customer will notify TFV immediately of any known abuse or violation against this Section 3.10, providing all details and course of correction to resolve such issue.

 

4. Payments, Credits, and Refunds
4.1. Customer agrees to pay TFV the fees set forth in this Agreement, the applicable Schedule/Proposal(s), and, if applicable, TFV’s invoice(s), for the Services and Equipment provided for hereunder.
4.2. All initial fees for Services shall be due upon commencement of the services. All subsequent invoices submitted shall be due Net 30 for the term of the Order as defined in each Schedule.
4.3. Customers shall pay all invoices via direct debit, electronic transfer or such other method as is specified by TFV.
4.4. If Customer reasonably disputes an invoice, Customer must pay the undisputed amount when due and submit written notice of the disputed amount (with details of the nature of the dispute and the invoice(s) disputed) within thirty (30) days of receipt of the invoice. TFV may assess interest at the rate of 1.5% per month or the maximum allowed by law on balances not paid when due. Customer shall pay all costs incurred in the collection of charges due and payable, including reasonable attorney fees, whether or not a suit is instituted.
4.5. Without limiting any other right or remedy of TFV under this Agreement, TFV reserves the right to suspend or terminate Customer’s access to any Services or Equipment (or any Third Party Services, Third Party Software or Third Party Equipment) provided hereunder in the event that any amount due under this Agreement, any Schedule/Proposal(s), or any invoice(s), is more than thirty (30) days past due. Such suspension or termination shall not relieve Customer of its obligation to pay any amount(s) due.
4.6. TFV fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, except for taxes on TFV net income (including FCC and related taxes and charges for phone based systems).
4.7. Upon written notice by Customer to TFV of its failure to satisfy the Uptime Commitment of the SLA within thirty (30) days of the end of a month, TFV shall credit Customer the fees as calculated in the SLA towards the next payment due from Customer. The credits provided to Customer shall be its sole and exclusive remedy for TFV’s failure to comply with the Uptime Commitment.

 

5. Term and Termination
5.1. The term of this Agreement (the “Term”) shall commence upon the Effective Date and shall continue until all Schedule/Proposal(s) issued under this Agreement shall have expired or been terminated.
5.2. Schedule/Proposal(s) issued under this Agreement shall (with respect to the Services identified thereon) commence upon the Start Date specified on the Schedule/Proposal(s) or, if earlier, the commencement or delivery of the applicable Services, and shall continue for an initial term of 36 months (or such other term, if any, set forth on the Schedule/Proposal(s)) (the “Initial Term”). Thereafter, Schedule/Proposal(s) shall renew (with respect to the Services identified thereon) for successive one (1) year renewal terms (each a “Renewal Term”) unless either party provides written notice to the other of its election not to renew not less than sixty (60) days prior to the expiration of the Initial Term or the then current Renewal Term, as the case may be. The per-unit pricing during any such renewal term shall increase by 5% per year over the base prices listed in the Schedules for the relevant services in the immediately prior term.
5.3. The provisions of Sections 6, 7, and 8, and any payment obligations incurred by Customer prior to or upon termination, shall survive termination of this Agreement.
5.4. If either party commits a material breach of this Agreement, and should such breach not be cured within thirty (30) days after receipt of written notice from the non-breaching party, this Agreement may be terminated by the non-breaching party upon written notice. Notwithstanding the foregoing, if the nature of the breach requires longer than thirty (30) days to cure, and TFV is taking commercially reasonable efforts to cure such breach at the end of the initial thirty (30) day cure period, TFV shall have a reasonable time thereafter to continue to effectuate a cure of such breach. Upon termination in such instance, TFV shall refund the unexpired portion of any fees paid.
5.5. Upon the effective date of termination, Customer’s access to the SaaS Services will be terminated and TFV’s provision of the Payroll Services shall be terminated (if applicable). Thirty (30) days after the effective date of termination, TFV shall have no obligation to maintain or provide any Customer SaaS Data, except as set forth on the Data Retention Policy attached hereto as Exhibit C. Upon termination of the Agreement, TFV shall use commercially reasonable efforts to permanently and irrevocably remove, purge or overwrite all data still remaining on the servers used to host the SaaS Services, including, but not limited to, Customer Data, unless and to the extent applicable laws and regulations require further retention of such data or as otherwise set forth on the Data Retention Policy attached hereto as Exhibit C.

 

6. Proprietary Right, Non-Disclosure
6.1. Each party shall maintain as confidential and shall not disclose, publish, or use for purposes other than as intended in this Agreement the other party’s Confidential Information except to those employees, contractors, legal or financial consultants and auditors of the recipient and its Affiliates who need to know such information in connection with the recipient’s performance of its rights and obligations under this Agreement and in the normal course of its business and who are bound by confidentiality terms no less stringent than the terms contained herein. “Confidential Information” shall include, but shall not be limited to, Customer Data, the SaaS Services, the Payroll Services, the pricing and terms of this Agreement, benchmarks, statistics or information on the capabilities of the SaaS Services, financial information, business plans, technology, marketing or sales plans that are disclosed to a party and any other information that is disclosed pursuant to this Agreement and reasonably should have been understood by the receiving party to be proprietary and confidential to the disclosing party because of (i) legends or other markings, (ii) the circumstances of disclosure, or (iii) the nature of the information itself. Notwithstanding the foregoing, Confidential Information shall not include: (i) information which is independently developed by the receiving party without the use of the disclosing party’s Confidential Information; (ii) information which is lawfully received by the receiving party free of restriction from another source having the right to so furnish such information; (iii) information after it has become generally available to the public without breach of any confidentiality obligations; or (iv) information which at the time of disclosure to the receiving party was known to the receiving party free of restriction. Each party shall protect such Confidential Information with reasonable care and no less care than it would exercise to protect its own Confidential Information of a like nature and to prevent the unauthorized, negligent, or inadvertent use, disclosure, or publication thereof. Notwithstanding anything else in this Agreement, either party may disclose Confidential Information in accordance with a judicial or governmental order, or as otherwise required by law, provided that the recipient either: (i) gives the disclosing party reasonable notice prior to such disclosure to allow the disclosing party a reasonable opportunity to seek a protective order or equivalent, or (ii) uses commercially reasonable efforts to obtain written assurance from the applicable judicial or governmental entity that it will afford the Confidential Information with confidential treatment.
6.2. Either party may disclose the existence of this Agreement and its terms to the extent required by law, the rules of any applicable regulatory authority or the rules of a stock exchange or other trading system on which that party’s securities are listed, quoted, and/or traded.
6.3. Breach of the obligations in this Section 5 may cause irreparable damage to the disclosing party and therefore, in addition to all other remedies available at law or in equity, the disclosing party shall have the right to seek equitable and injunctive relief for such breach. In the event of any litigation to enforce or construe this Section 5, the prevailing party shall be entitled to recover, in addition to any charges fixed by the court, its costs and expenses of suit, including reasonable attorneys’ fees, costs and expenses.
6.4. As between TFV and Customer, Customer shall own all title, rights, and interest in Customer Data.
6.5. Both parties agree to comply with all applicable privacy and data protection statutes, rules, or regulations governing the respective activities of the parties. Customer hereby consents to the use, processing and/or disclosure of the Customer Data for the purposes described herein and to the extent such use or processing is necessary for TFV to carry out its duties and responsibilities under this Agreement or as required by law.
6.6. Customer acknowledges and agrees that the SaaS Service and the SaaS Software embodied therein, and any modifications, customizations, updates, add-ons and interfaces (including APIs) thereof or thereto (including, without limitation, any modifications, customizations, updates, add-ons and interfaces thereof or thereto developed or made by TFV for Customer) and the documentation relating thereto, are, and shall at all times remain, the property of TFV (and, if and as applicable, any third parties which have granted TFV the right to license the same) and Customer shall have no right or interest in or to any of the foregoing other than the rights expressly granted under this Agreement.
6.7. Other than the rights expressly granted in this Agreement, each party retains all of its rights to its technologies, trade secrets and other intellectual property and proprietary rights. No implied licenses are granted herein.

 

7. Warranties and Indemnifications
7.1. TFV shall, at its expense, indemnify, defend and hold Customer harmless from and against any third party claim that the SaaS Services infringe an Intellectual Property Right of any third party; provided, however, that (a) Customer promptly notifies TFV of any such claim, and (b) permits TFV to defend with counsel of its own choice, and (c) Customer gives TFV such information and/or assistance in the defense thereof as TFV may reasonably request. In no event shall Customer settle any such claim without the written consent of TFV. If the SaaS Services are adjudged to infringe an Intellectual Property Right by a court of competent jurisdiction, TFV shall, at its expense and election either: (i) procure the right for Customer to continue using the infringing items, (ii) replace the infringing items with a functionally equivalent non-infringing product, (iii) modify the infringing items so that they are non-infringing, or (iv) terminate the affected Schedule and refund the unexpired portion of any fees paid. In no event shall TFV, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on: (a) a modification of the SaaS Services or Documentation by anyone other than TFV, or (b) the Customer’s use of the SaaS Services or Documentation in a manner contrary to the instructions given to the Customer by TFV, or (c) the Customer’s use of the SaaS Services or Documentation after notice of the alleged or actual infringement from TFV or any appropriate authority. The provisions of Section 7.1 constitute the entire liability of TFV and sole remedy of Customer with respect to any claims or actions based in whole or in part upon infringement or violation of an Intellectual Property Right of any third party.
7.2. TFV represents and warrants: (a) it has the right to grant the rights specified herein, and (b) the SaaS Services will not contain any viruses or Trojan horses.
7.3. Customer represents and warrants to TFV that it shall comply with all applicable Federal, state and local laws, rules and regulations in connection with its use of the Services and the Equipment (and any applicable Third Party Services, Third Party Software and Third Party Equipment) including, without limitation, all applicable data privacy and export control laws, rules and regulations.
7.4. THE WARRANTIES AND REMEDIES SET FORTH HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHERS, WHETHER ORAL OR WRITTEN, EXPRESSED OR IMPLIED. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION 7, TFV SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES REGARDING THE SERVICES AND ANY OTHER MATTER WHATSOEVER. IN PARTICULAR, BUT WITHOUT LIMITATION, TFV SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR ANY OTHER WARRANTY ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. NO TFV AGENT, CONTRACTOR OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATION TO THIS WARRANTY, UNLESS IN A SIGNED WRITING EXECUTED BY A TFV EMPLOYEE WITH ACTUAL AUTHORIZATION TO BIND TFV. TFV DOES NOT WARRANT THAT THE SAAS SERVICE OR ANY PORTION THEREOF WILL OPERATE UNINTERRUPTED, WILL BE ERROR FREE OR THAT TFV WILL CORRECT ALL NON-MATERIAL ERRORS.
7.5. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF DATA, INTERRUPTION OF BUSINESS OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT. THE LIMITATION OF LIABILITY SPECIFIED IN THIS PARAGRAPH APPLIES REGARDLESS OF THE CAUSE OR CIRCUMSTANCES GIVING RISE TO SUCH LOSSES OR DAMAGES, INCLUDING WITHOUT LIMITATION, WHETHER THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES, THE DAMAGES ARE FORESEEABLE, OR THE ALLEGED BREACH OR DEFAULT IS A FUNDAMENTAL BREACH OR BREACH OF A FUNDAMENTAL TERM. IN NO EVENT SHALL TFV BE LIABLE FOR THE ACTS OR OMISSIONS OF ANY OTHER PERSON OR ENTITY INCLUDING, BUT NOT LIMITED TO, ANY THIRD PARTY PROVIDER.
7.6. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL TFV BE LIABLE FOR ANY DAMAGES FROM ANY CAUSE OR CLAIM WHATSOEVER ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY SERVICE OR EQUIPMENT PROVIDED HEREUNDER IN EXCESS OF THE FEES PAID BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD PRECEDING WHICH THE CLAIM AROSE. SUCH FEES SHALL BE LIMITED TO THE PARTICULAR SCHEDULE TO WHICH THE DEFAULT RELATES. THE LIMITATIONS SPECIFIED IN THIS SECTION 7.6 SHALL NOT APPLY TO A BREACH OF THE NON-DISCLOSURE PROVISIONS OF SECTION 5 OR THE INDEMNIFICATION PROVISIONS OF SECTIONS 7.1.

 

8. General Provisions
8.1. The parties are independent contractors with respect to the Services and Equipment contemplated under this Agreement. Except as expressly set forth herein, neither party shall be deemed to be an employee, agent or legal representative of the other for any purpose and neither shall have any right, power or authority to create any obligation or responsibility on behalf of the other.
8.2. Each party may include the other party’s name or logo in a list of its clients, vendors, or service providers. Each party may make reference to the other in an initial press release, provided that any use of the other party’s trademark(s) retain proprietary notices and/or are properly attributed to their owner and also provided that any such press release will require the review and prior written consent of both parties, which shall not be unreasonably withheld, conditioned, or delayed.
8.3. In recognition of the pricing provided under this Agreement, Customer shall (subject to its reasonable right to review and approve): (a) allow TFV to include a brief description of the Services and Equipment furnished to Customer in TFV promotional materials, and (b) allow TFV to make reference to Customer in case studies, ROI analyses, white papers and related marketing materials, and (c) serve as a reference for TFV potential clients, and (d) provide interviews to the news media and provide quotes for press releases, and (e) organize mutually convenient site visits for TFV potential clients, and (f) make presentations at conferences, upon TFV reasonable request and at TFV’s cost.
8.4. Any notice to be sent relating to this Agreement shall be in writing and mailed to the other party at the addresses set forth herein addressed to Legal Department, by certified mail, return receipt requested, or by Federal Express (or other reputable overnight delivery service which maintains a record of delivery), confirmed facsimile transmission or acknowledged receipt of electronic mail.
This Agreement, including all Exhibits and Schedules, contains the entire agreement of the parties with respect to its subject matter hereof, and there are no promises, conditions, representations or warranties except as expressly set forth herein. This Agreement has been the subject of arm’s length negotiations and shall be construed as though drafted equally the parties. No terms, provisions or conditions of any purchase order or other document that Customer may use in connection with this Agreement shall have any effect on the rights, duties or obligations of either party. Unless expressly stated to the contrary in any Schedule, any terms or conditions specified in this Agreement shall prevail over terms and conditions in the Schedules. Silence shall not constitute a conflict. No term or provision of this Agreement shall be deemed waived, and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other party, whether express or implied, shall not constitute a consent to or waiver of any different or subsequent breach. If a court of competent jurisdiction holds any provision of this Agreement to be illegal, unenforceable, or invalid in whole or in part for any reason, the validity and enforceability of the remaining provisions, or portions of them, will not be affected. The headings and titles provided in this Agreement are for convenience only and shall have no meaning on the terms of this Agreement. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Customer may not assign this Agreement (or any related Schedule(s) without TFV’s prior written consent. Any attempted assignment contrary to the foregoing shall be void. TFV may assign this Agreement (and any applicable Schedule(s) to any affiliate of TFV or to any entity which acquires all or part of the business or assets of TFV. TFV may subcontract any of its service obligations under this Agreement to a subcontractor selected by TFV. The parties agree that reliable copies such as scanned or facsimile counterpart signatures are acceptable.
8.5. This Agreement may be modified or amended only by written instrument executed by the parties. Notwithstanding the foregoing, TFV may modify any term of this Agreement by providing not less than forty-five (45) days prior written notice to Customer (such notice to include the nature of and effective date of any such modification) to the extent reasonably necessary to conform to the requirements of any applicable law, rule or regulation or to conform to requirements imposed by any Third Party Provider. Customer shall be deemed to have accepted and agreed to any such modification unless Customer elects to terminate this Agreement by written notice to TFV prior to the effective date of the modification. In the event that Customer elects to terminate this Agreement prior to such effectiveness, TFV shall refund to Customer any fees paid which pertain to the portion of the term of this Agreement which is terminated.
8.6. No action arising out of any claimed breach of this Agreement may be brought by the Customer against TFV more than one (1) year after the cause of action has accrued. Customer shall be liable for breaches of its Affiliates and contractors under this Agreement.
8.7. This Agreement shall be governed by the laws of the State of California, without reference to the choice of law provisions thereof. The parties hereby consent to the exclusive personal jurisdiction of the state and federal courts located in the State of California for any action, suit or proceeding relating to these Payroll Service Terms and Conditions and all related Schedule/Proposal(s), and do hereby waive any objection to venue or claim of forum non conveniens with respect to such courts.
8.8. EACH PARTY ACKNOWLEDGES THAT THE WARRANTY DISCLAIMERS, LIABILITY AND REMEDY LIMITATIONS, AND SERVICE LEVELS IN THIS AGREEMENT ARE MATERIAL BARGAINED FOR BASES OF THIS AGREEMENT AND THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.

 

 

 

EXHIBIT A –SCHEDULE/PROPOSAL FORM

TO BE FILLED OUT FOR EACH CUSTOMER

 

EXHIBIT B – DATA PROTECTION

TFV will adhere to industry standard practices in security risk management for the SaaS Service and maintain controls as appropriate. Specific privacy and data protection policies can be reviewed on TFV website located at http://legal.trackforce.com/.
Such policies are subject to updates and changes, without notice, by TFV.

 

EXHIBIT C – TRACKFORCE VALIANT DATA RETENTION POLICY

For current TFV SaaS Customers, Trackforce Valiant will ordinarily retain (i) three (3) years of Customer Data in the SaaS environment pertaining to GuardTek SaaS Services, and (ii) three (3) years of Customer Data in the SaaS environment pertaining to Smartforce SaaS Services.
TFV Customers will be notified ninety (90) days prior to the data purge operation in the SaaS Environment. If the Customer does not confirm acceptance of the data purge prior to the end of the ninety (90) days, Trackforce Valiant will not purge the data but, instead, will charge Customer monthly data storage fees (to be invoiced monthly in arrears). Customer shall be required to give Trackforce Valiant thirty (30) days’ written notice prior to terminating the data storage service herein. Options for Customers who desire to retain their historical data are listed below:
1. Customer may request for Trackforce Valiant to backup their SaaS data prior to the purge operation, in a format and delivery method made available by Trackforce Valiant for this purpose, or a standard CSV formatted data dump which Customer may download and retain via SFTP, no more than once per year at Customer’s cost.
2. Customer may elect to have Trackforce Valiant retain their SaaS data online in the SaaS environment for an incremental five percent (5%) per year of their annual SaaS subscription fees. For example, for years 1 to 3 the cost to the Customer to store all production data is included in the standard SaaS fees. For each subsequent year Customer will pay an incremental five percent (5%) per year for additional data retained. Therefore, a Customer for whom Trackforce Valiant retains 7 years of data will pay an additional 5% for year 4, 10% for year 5, 15% for year 6, and 20% for year 7 over their standard SaaS fee.

 

EXHIBIT D – TRACKFORCE EQUIPMENT SUPPORT AND MAINTENANCE TERMS

TFV reserves the right to modify and improve the Equipment Support and Maintenance Services provided under these Equipment Support and Maintenance Terms and to adapt the services to changes in technology and to TFV’s business environment. For these purposes, TFV reserves the right to modify, improve, elaborate, remove or add to the provisions of these Equipment Support and Maintenance Terms at TFV’s sole discretion and without further notice, provided that any such improvement or adaptation shall not result in a diminution of the overall level of service provided hereunder.
1. Term. If Customer leases Equipment from TFV, TFV agrees to provide Equipment Support during and for the term of the Agreement. If Customer purchases Equipment from TFV, and has paid TFV’s applicable fee for support and maintenance, TFV agrees to provide Equipment Support during and for the term of the Agreement or the period for which Customer paid the fee, whichever is shorter.
2. Supported Equipment. All Equipment leased from TFV and all Equipment purchased from TFV (for which Customer has paid a fee for support and maintenance, as discussed above) shall be considered Supported Equipment under these Equipment Support and Maintenance Terms.
3. Incident. An Incident is defined as a single support issue with a TFV Equipment product and the reasonable effort needed to resolve such issue. A single support incident is a problem that cannot be broken down into subordinate parts. It is possible for one Incident to span multiple telephone calls and multiple emails; it is also possible for one telephone call to include multiple Incidents.
4. Support Services. TFV support technicians shall aid in the resolution of Equipment support requests in a timely and professional manner. TFV will assist with issues related only to the Supported Equipment. Upon notification of an Incident, an Incident number will be issued, and the Incident number will remain effective and open until satisfactory resolution of the cause of the Incident, or five (5) business days without a Customer communication, after which the Incident number will be closed.
5. Maintenance Services. During the term, should a defect in materials or workmanship be identified on Supported Equipment (“Defective Equipment”), TFV will promptly ship Customer a comparable Equipment device of like kind with the functional equivalent of the Defective Equipment (“Replacement Equipment”) to arrive at Customer’s specified location. Cost to ship replacement Equipment is the responsibility of Customer.
6. Return of Defective Equipment. Upon replacement of Defective Equipment, Customer’s Defective Equipment shall become the property of TFV, and the Replacement Equipment shall become Customer’s leased or purchased property, as applicable. Instructions and a return label for return of the Defective Equipment will be included in the packaging of the Replacement Equipment or will be provided upon request. Customer shall properly package the shipment when returning the Defective Equipment. The Defective Equipment must be returned to TFV within 14 days of receiving the Replacement Equipment. Should Customer fail to return the Defective Equipment, Customer agrees to pay TFV the Manufacturer’s Suggested Retail Price (“MSRP”) of the Defective Equipment. Additionally, Customer’s ability to request Maintenance Services on any other supported Equipment will be suspended until the Defective Equipment is returned to TFV or Customer pays TFV the MSRP of the Defective Equipment.
7. Additional Products. If, during the Term, Customer purchases additional Equipment Products, these Equipment Support and Maintenance Terms shall be amended to include Equipment Support and Maintenance Services for such additional Equipment Products. The fee for such additional Equipment Products shall be charged at the time of purchase, unless TFV and Customer agree to prorate such payment term so that the term of such additional product coverage will expire at the end of the Term.
8. Limitations.
a. Support Services. Support Services are limited to Equipment troubleshooting and Equipment configurations as needed to ensure the GuardTek SaaS software and the Smartforce SaaS software functions appropriately on the Equipment. Support Services do not cover inquiries on legal time keeping compliance and do not include in-depth product training. Support Services extend only to platforms and operating environments specified by TFV. TFV is not responsible for integration or configuration with third party software, Equipment, or operating environments except as allowed by the Agreement and the products purchased from TFV. Customer is entitled to an unlimited number of support Incidents during the Term of the Agreement.
b. Maintenance Services. TFV will provide maintenance on Equipment for damage caused in the normal course of business. Maintenance Services do not cover (a) damage caused by accident, abuse, misuse, liquid contact, fire, earthquake, other external causes, or operating covered Equipment outside the Equipment’s intended or permitted use; (b) Equipment with a serial number that has been defaced, altered, removed, or modified without written permission from TFV; (c) Equipment that has been lost or stolen; (d) cosmetic damage including, but not limited to, scratches, dents, and broken plastics or ports; (e) consumable parts such as batteries; (f) preventative maintenance; or (g) defects caused by normal wear and tear or otherwise normal aging of the Equipment.
9. Services Requests. Requests for Services shall be made by Customer to TFV support email at support@trackforce.com. Customer shall provide a reasonable amount of information and assistance related to the Incident for verification and resolution of the Incident. When requesting Replacement Equipment, Customer must provide TFV with the serial number of Defective Equipment in question, the problem, the context in which the problem was encountered, a description of the system configuration, the steps necessary to generate or reproduce the problem, and the address TFV will use to ship the Replacement Equipment. Failure to provide reasonable information or assistance may result failure to resolve the Incident.
10. Miscellaneous. The Equipment Support and Maintenance Services and these Equipment Support and Maintenance Terms are not transferable by Customer. These Equipment Support and Maintenance Terms are issued under the Agreement and are subject to the terms and conditions of the Agreement. With the exception of the Agreement, these Equipment Support and Maintenance Terms supersede all other oral or written proposals, purchase orders, prior agreements, and other communications between Customer and TFV concerning the subject matter hereof, and constitute the entire agreement between TFV and Customer regarding provision of Equipment Support and Maintenance Services. These Equipment Support and Maintenance Terms do not constitute a certification or warranty, express or implied of any kind. TFV’s obligations and responsibilities regarding product warranties are governed solely by the Agreement under which they are sold or licensed, not to exceed the original manufacturer’s product warranties.

 

EXHIBIT E – SERVICE LEVEL AGREEMENT

TFV shall provide the following service levels for the SaaS Services during the term of the Agreement.

Service Area Service Level Commitment
Uptime Commitment Production Environments: 99.5%
Backup Services TFV is responsible for backup and restore of data stored in the SaaS Service.
TFV shall backup all Customer Data in its entirety every seven (7) days.
TFV shall backup all changes to Customer Data every twenty-four (24) hours.
Disaster Recovery Time Objective Except as otherwise noted herein, failover of Production Environment functionality to the Disaster Recovery site will occur within five (5) hours of TFV declaring a Disaster.

Disaster Recovery Point Objective Maximum data loss of one-and-a-half (1.5) hours of data stored in the Production Environment.

NOTES, DEFINITIONS, AND ADDITIONAL TERMS

The following notes, definitions, and additional terms are an integral part of the Service Level Agreement.
1. “Disaster” means an event after which TFV determines the SaaS Services should be failed over to the disaster recovery site.
2. “Downtime” means the Total Minutes in the Month during which the Production Environment is not available, except for Excluded Downtime.
3. “Excluded Downtime” means Total Minutes in the Month attributable to:
(i) Scheduled Maintenance Windows;
(ii) SaaS Service updates;
(iii) Content provided by Third Party Content Vendors, including third party software vendors;
(iv) Unavailability caused by factors outside of TFV’s reasonable control, such as unpredictable and unforeseeable events that could not have been avoided even if reasonable care had been exercised, including, without limitation, a Force Majeure event.
4. “Month” means a calendar month.
5. “Total Minutes in the Month” are measured 24 hours at 7 days a week during a Month.
6. “Scheduled Maintenance Windows” means a window of time during which the SaaS Services may be down for maintenance, which window is (a) 3:00 am Sunday to 4:00 am Sunday U.S. Eastern Time for the US and Canada data centers (b) 3:00 am Sunday to 4:00 am Sunday Central European Time for the European data centers (if applicable); (c) 3:00 am Sunday to 4:00 am Sunday Australian Eastern Time for Asia Pacific/Australia data centers (if applicable); (d) for an extended maintenance window in which case Customer will be notified at least ten (10) business days in advanced; and (e) a maintenance window scheduled with Customer to perform maintenance or updates to the Customer’s Production Environment.
7. “System Availability Percentage” means the average percentage of total time during which the Production Environment is available to Customer and is calculated as follows:

8. Data collection terminals will continue to accept swipes during system downtime and swipes will be uploaded when the online system becomes available.
9. If Customer elects to have any services provided by a third party, TFV shall have no liability for any defect or failure of the SaaS Services caused by such third party services, and Customer shall not be entitled to any reduction in fees for the SaaS Services relating to the same. TFV may deny access to the SaaS Services to any third party which TFV determines in its sole discretion poses a security risk or other risk to TFV systems, data or intellectual property.
10. Customer shall notify TFV in writing at least sixty (60) days in advance of any period when it reasonably believes the number of Active Employees or peak usage transaction volume to the SaaS Services may increase by more than 20% over the prior thirty (30) day period and at least ninety (90) days in advance if it expects more than a 50% increase. Failure to provide such notification shall release TFV of any obligations herein from the date such increase occurred.
11. The Uptime Commitment does not apply in the first thirty (30) days of use in a Production Environment, during which time TFV may need to tune the environment for Customer based on its actual usage patterns.
12. The Uptime Commitment does not apply during a Force Majeure event and shall be reinstated again only after service has been fully restored at the primary facility.
15. Access to archived or backup data, if available, will be quoted to Customer, provided as a Global Service, and may be made available as a database extract or in a separate environment.

 

CREDITS IF TFV FAILS TO MEET THE UPTIME COMMITMENT

If Customer provides written notice to TFV of TFV’s failure to satisfy the Uptime Commitment within thirty (30) days of the end of a month, TFV will credit to Customer 2% of monthly fee as calculated on a prorated basis of the Subscription Fees for each 1% below SLA, not to exceed 100% of the calculated prorate monthly amount of the Subscription Fees.

 

EXHIBIT F – PAYROLL SERVICE TERMS AND CONDITIONS

These Payroll Services Terms and Conditions (“Payroll Service Terms and Conditions”), together with all applicable Schedule/Proposal(s) and the Agreement, shall govern the provision of Payroll Services, Payroll Software and Payroll Equipment (each as defined below) by Valiant Payroll Services, Inc. (referred to in these Payroll Service Terms and Conditions as “TFV”) to Customer. These Payroll Service Terms and Conditions, together with all applicable Schedule/Proposal(s) and the Agreement, shall constitute a binding agreement between TFV and Customer.
1. Definitions and Rules of Construction
1.1 Definitions. Capitalized terms used, and not otherwise defined in these Payroll Service Terms and Conditions or the Agreement, shall have the meanings set forth below.
“Customer” shall mean the customer entity indicated on the applicable Schedule/Proposal(s), and any additional affiliated customer entities for whom Customer has engaged TFV to provide Payroll Services. In the event that Customer shall be comprised of more than one legal entity, then these Payroll Service Terms and Conditions shall apply to each such legal entity receiving services.
“Employee” shall mean, with respect to a given month, any employee of Customer (or any other person performing services for Customer (such as an independent contractor)) who is included in, uses or accesses the Payroll Services or Payroll Software in any way during such month, including, without limitation, any person that is included in any payroll calculated using Payroll at any time during the month.
“Payroll Documentation” shall mean TFV’s then current on-line guides and specifications, if any, made generally available by TFV for the Payroll Services, the Payroll Software and/or the Payroll Equipment.
“Payroll Equipment” shall mean equipment purchased or rented by Customer from TFV under these Payroll Service Terms and Conditions for use in connection with the Payroll Services.
“Payroll Services” shall mean services provided by TFV under these Payroll Service Terms and Conditions, including Payroll Services.
“Payroll Software” shall mean any software provided by TFV to Customer as part of the Payroll Services, together with any upgrades, modifications or enhancements to such software provided by TFV.
“Schedule/Proposal(s)” shall mean the sales proposal(s) or sales order(s) generated by TFV and provided to Customer from time to time pursuant to which TFV agrees to provide to Customer Payroll Services, Payroll Software and/or Payroll Equipment (and/or arrange for the provision to Customer of specific Third Party Services, Third Party Software and/or Third Party Equipment). For purposes of clarity, it is noted that the term Schedule/Proposal(s) shall not include TFV generated marketing materials, or Customer generated purchase orders.
“Start Date” shall mean, with respect to a given payroll service, payroll software license or piece of payroll equipment, the date upon which TFV (or Third Party Provider) shall begin providing the payroll service, payroll software license or payroll equipment to Customer, as specified on the Schedule/Proposal(s) pertaining to such payroll service, payroll software license or payroll equipment.
1.2 Incorporation of Schedule/Proposal(s). All applicable Schedule/Proposal(s) are incorporated into these Payroll Service Terms and Conditions by reference and shall constitute a part hereof. 1.2 Precedence of Payroll Service Terms and Conditions. In the event of any conflict between the terms of these Payroll Service Terms and Conditions and the terms of the Agreement, the terms of these Payroll Service Terms and Conditions shall govern.
2. Payroll Services – General Payroll Services
2.1 TFV Responsibilities
2.1.1 TFV shall provide the Payroll Services to Customer if such services are elected and purchased by Customer. The Payroll Services elected and purchased by Customer shall be set forth on the Schedule/Proposal(s).
2.1.2 TFV shall provide the Payroll Services for the term set forth on the Schedule/Proposal(s) (as the term may be extended as set forth in these Payroll Service Terms and Conditions) subject to earlier termination in the manner set forth in Section 12 of these Payroll Service Terms and Conditions.
2.1.3 TFV will provide any setup and implementation services as necessary and customary to ensure Customer can utilize the Payroll Services as purchased. Upon completion of any setup services, Customer shall review the content for accuracy. TFV shall have no liability to Customer for any errors or inaccuracies in content to be reviewed by Customer.
2.2 Customer Responsibilities
2.2.1 Customer is responsible for the timeliness and accuracy of payroll data submitted for each payroll processed, including payroll amounts, payroll dates and employee bank account information. Customer agrees to provide TFV with payroll data at least two (2) banking days prior to check date. TFV shall not be responsible for any late payroll that is due to Customer delay in providing payroll data to TFV. In addition, Customer shall be responsible for any increased cost incurred by TFV due to any Customer delay in providing payroll data to Customer. In the event that Customer error creates the necessity for TFV to reprocess a payroll or create other adjustment processes, Customer shall be responsible for the cost of reprocessing such payroll and/or correcting such error.
2.2.2 Customer shall notify TFV of all relative tax processing information relating to Customer including, but not limited to, employer-assigned tax rates and Customer tax deposit frequencies. TFV shall not be required to make any determination as to Customer tax reporting responsibilities. Customer shall review all reports and documents provided by TFV to Customer and shall promptly inform TFV of any inaccuracies therein.
2.2.3 Customer shall execute such documents and provide such information as shall be required by TFV to enable TFV to perform the Payroll Services selected by Customer.
2.3. Use of Services
2.3.1 Customer may only use the Payroll Services for its own internal business operations. Customer may not use the Payroll Services for any other purpose including, without limitation, for time-sharing, outsourcing or service bureau use.
2.3.2 Customer acknowledges that TFV is not rendering legal, tax, accounting or investment advice in connection with the Payroll Services and that Customer will look solely to its legal, tax, accounting or other advisers for any such advice. Customer acknowledges that, while the Payroll Services are designed to assist Customer in complying with applicable laws and governmental regulations, Customer, and not TFV, shall remain responsible for (i) compliance by Customer with all laws and governmental regulations applicable to its business (including laws and regulations that require Customer to maintain records regarding its business or employees), and (ii) for any use Customer may make of the services to assist it in complying with such laws and governmental regulations. Customer further acknowledges that, in making TFV Payroll Services available, TFV is not acting as an investment advisor, broker-dealer, insurance agent, or intermediary or a financial or benefit planner. TFV is not providing any benefits or information related thereto.
3. Payroll Services – Tax Filing Services
3.1 If tax filing services are included within the payroll services provided to Customer under the Schedule/Proposal(s), Customer acknowledges that TFV shall, as applicable, collect and retain employer and employee payroll taxes; remit such payroll taxes on behalf of Customer to applicable federal, state and local taxing authorities when due; prepare and file applicable tax returns, reports and statements on behalf of Customer with such taxing authorities when due; provide Customer with a quarterly reconciliation of funds transferred and deposited for Customer along with copies of return files; respond to related jurisdictional inquires; and maintain records of Customer’s tax account together with the tax accounts of other TFV clients (collectively, the “Tax Filing Services-Direct”). Customer acknowledges that TFV may (in conjunction with, or as an alternative to, the Tax Filing Services-Direct) utilize a third party service provider (the “Tax Service”) to, as applicable, collect and retain (as agent of Customer and/or as agent of TFV) employer and employee payroll taxes, remit (as agent of Customer and/or as agent of TFV) such payroll taxes on behalf of Customer to applicable federal, state and local taxing authorities when due, and file (as agent of Customer and/or as agent of TFV) applicable tax returns, reports and statements on behalf of Customer with such taxing authorities when due (collectively, the “Tax Filing Services-Third Party” and, together with the Tax Filing Services-Direct, the “Tax Filing Services”). For purposes of clarity, it is noted that the Tax Filing Services-Third Party shall constitute Third Party Services under these Payroll Service Terms and Conditions.
3.2 Customer acknowledges that, as a condition to receiving the Tax Filing Services, Customer shall be required to execute and provide to TFV and/or the Tax Service, such agreements, documents and instruments (including necessary powers of attorney and bank authorizations) as shall be required by TFV and/or the Tax Service from time to time to, as applicable, collect, retain and remit payroll taxes and to file payroll tax returns, reports and statements on behalf of Customer (collectively, the “Tax Filing Documents”). Customer further acknowledges that TFV may, upon not less than forty-five (45) days prior written notice to Customer, change the Tax Service. Customer shall be deemed to have accepted and agreed to any such change unless Customer elects to terminate the Payroll Services by written notice to TFV not less than fifteen (15) days prior to the effective date of the change.
3.3 In connection with the Tax Filing Services, Customer agrees to maintain such bank accounts as shall be required under the Tax Filing Documents and to maintain in such accounts such funds as shall be necessary to timely satisfy Customer’s payroll tax obligations. Customer shall and hereby does authorize TFV and/or the Tax Service, as applicable, to debit (including by way of ACH debit or reverse wire) Customer’s designated bank account(s) each pay period for the amount of Customer’s payroll tax obligations for such pay period so that TFV and/or the Tax Service may, as applicable, collect, retain and remit such payroll tax amounts to the appropriate tax authorities. Customer agrees to maintain such
funds in such bank account(s) no later than 3 pm EST two (2) banking days prior to check date for each pay period so as to provide TFV and/or the Tax Service sufficient time to debit the bank account(s) for such pay period. Customer is responsible for any fees, interest and/or penalties if funds are not collectable two (2) banking days prior to check date. Customer does hereby further authorize TFV to provide to the Tax Service such Customer payroll data and other information as shall be necessary to enable the Tax Service to perform the Tax Filing Services-Third Party.
3.5 Customer agrees to provide complete and accurate master file detail for tax filing services per TFV specifications including, but not limited to, employer and jurisdiction data and required deposit and return history, if any, prior to the initiation of tax services. Customer agrees to verify all Customer master file information and notify TFV in writing of any required corrections at least 72 hours prior to the initiation of service. Customer agrees that any changes, additions or deletions to Customer master file information after the initial payroll tax cycle will be made known to TFV immediately and in writing. Customer agrees to provide any changes to quarterly payroll wage and tax information no later than 10 days after the close of a calendar quarter.
3.6 Customer agrees that it is responsible for research and resolution of any State or Local agency penalty and/or delinquency resulting from incorrect information or any period where deposits/filings were under an “Applied For” basis. Customer agrees that any errors, penalties and interest payment responsibilities arising from incorrect deposits, filings and payroll liability information prior to the start date are the responsibility of Customer.
3.7 Customer hereby directs TFV, should the requirement exist, to adjust, modify or otherwise correct any prior EFTPS or other tax transfers, ACH payments or other payments made on behalf of Customer by TFV in order to ensure Customer’s compliance with these Payroll Service Terms and Conditions. Adjustments required to accurately or timely process Customer’s tax account and/or charge backs to Customer for reimbursements due to Customer and/or other errors may be rendered and charged without prior notification to Customer.
3.8 Customer acknowledges that TFV is acting solely in the capacity of data processing agent and is not a source of funds for Customer. Customer agrees to pay TFV on demand the amount of any unfunded items including, without limitation, any debit returned to TFV due to insufficient or uncollected funds or for any other reason. Customer acknowledges that should any debit be returned to TFV for any reason, TFV shall have the right to not make tax deposits with taxing authorities or other payments on behalf of Customer until the funds are received by TFV, and any and all resulting late fees, interest or penalties (including those imposed by taxing authorities) are the responsibility of Customer. Customer further authorizes TFV to reverse any deposits made to any taxing authorities to the extent allowed by law to the extent necessary to recover any tax liabilities advanced by TFV. Should Customer not reimburse TFV for funds advanced by TFV and/or should Customer leave TFV owing tax balances, the deficit amounts shall be subject to interest, service charges and any other third party charges incurred (including, without limitation, reasonable attorney fees).
3.9 Customer agrees to indemnify TFV and hold TFV harmless from and against any and all claims, damages, losses, liabilities or expenses incurred by TFV (including, without limitation, interest, penalties assessed and legal fees incurred) that result from or pertain to any tax liabilities advanced by TFV. Customer shall further agrees to repay to TFV any tax liabilities advanced by TFV including, but not limited to, where due to bank returns, reversals, or delays of Customer to fund tax deposits. In the event TFV is caused to extend credit to Customer for any reason, Customer hereby irrevocably appoints TFV, with full power of substitution, to, in TFV’s discretion, at the expense of Customer, take any action that may be deemed necessary or advisable by TFV to protect, collect, realize upon, enforce its rights to and preserve any collateral or to initiate reimbursement for unauthorized and/or Customer imposed extensions of credit.
3.10 Customer authorizes TFV to initiate a nominal test drawdown against Customer’s bank account in order to test the validity of banking information provided by Customer to TFV. The amount of such nominal test drawdown shall be credited back to Customer’s bank account on the next business day.
3.11 Customer agrees to comply with and satisfy its obligations under these Payroll Service Terms and Conditions pertaining to Tax Filing Services, and to indemnify TFV and hold TFV harmless from and against any and all claims, damages, losses or expenses incurred by TFV as a result of any breach by Customer of its obligations under these Payroll Service Terms and Conditions pertaining to Tax Filing Services.
3.12 Customer agrees to comply with and satisfy its obligations under the Tax Filing Documents, and to indemnify TFV and hold TFV harmless from and against any and all claims, damages, losses or expenses incurred by TFV as a result of (i) any breach by Customer of its obligations under the Tax Filing Documents, or (ii) any inaccuracy in or incompleteness of any information provided by Customer to TFV under the Tax Filing Documents.
3.13 Customer may only use the Tax Filing Services for its own internal business operations. Customer may not use the Tax Filing Services for any other purpose including, without limitation, for time-sharing, outsourcing or service bureau use.
4. Payroll Services – ACH Services
4.1 If direct deposit or other ACH (Automated Clearing House) services are included within the services provided to Customer under the Schedule/Proposal(s), Customer acknowledges that TFV shall utilize a third party service provider (the “ACH Provider”) to process direct deposit and other ACH transactions (collectively, the “ACH Services”). For purposes of clarity, it is noted that the ACH Services shall constitute Third Party Services under these Payroll Service Terms and Conditions.
4.2 Customer acknowledges that, as a condition to receiving the ACH Services, Customer shall be required to execute and provide to such ACH Provider such agreements, documents and information (including necessary bank account information) as shall be required by the ACH Provider to process direct deposit and other ACH transactions on behalf of Customer (collectively, the “ACH Documents”). Customer further acknowledges that TFV may, upon not less than forty-five (45) days prior written notice to Customer, change the ACH Provider.
4.3 In connection with the ACH Services, Customer agrees to maintain such bank accounts as shall be required under the ACH Documents and to maintain in such accounts such funds as shall be necessary to timely satisfy Customer’s net payroll obligations. Failure to properly fund such bank accounts may result in the delay, suspension or termination of service. Customer shall and hereby does authorize the ACH Provider and/or TFV to debit (including by way of ACH debit or reverse wire) Customer’s designated bank account(s) each pay period for the amount of Customer’s net payroll obligations for such pay period that are to be paid by direct deposit or other ACH transaction so that the ACH Provider may process and transmit such direct deposit or other ACH transaction amounts to the appropriate employees. Customer agrees to maintain such funds in such bank account(s) at least 2 banking days prior to pay date for each pay period so as to provide the ACH Provider and/or TFV sufficient time to debit the bank account(s) for such pay period. To the extent necessary, Customer shall and hereby does further authorize the ACH Provider and/or TFV to initiate debit and/or credit entries to Customer’s designated bank account(s) and, if applicable, to employee accounts, to reverse and/or correct amounts previously posted to such accounts in error. Customer does hereby further authorize TFV to provide to the ACH Provider such Customer payroll data and other information as shall be necessary to enable the ACH Provider to perform the ACH Services. Customer agrees to obtain appropriate authorizations from each employee who will be paid by direct deposit or other ACH transaction and agrees to retain such authorizations in Customer’s files until at least the second (2nd) anniversary of the revocation or other termination of the authorization. Such authorizations shall authorize the initiation of credits to the employee’s account for payroll deposits and the initiation of debits to the employee’s account to recover funds credited to such account in error. In connection with the ACH Services, Customer further agrees to comply with the rules of the National Automated Clearing House Association (NACHA) and all applicable laws of the United States and Customer represents and warrants that, at the time any employee direct deposit or other ACH transaction is submitted for processing, Customer shall not have actual knowledge of any revocation or other termination of the employee’s authorization or actual knowledge of any termination of the arrangement between the employee and the bank through which the employee’s direct deposit or other ACH transaction will be received. Customer is responsible for any fees, interest and/or penalties if funds are not collectible two banking days prior to check date. Should there be a delay in Customer’s employee direct deposits or other transactions due to a technical error or other error in the EFT System process, Customer understands and agrees that employee payroll funds will be automatically deposited electronically on the banking day subsequent to resolution of the error as is standard practice in the banking and payroll industries. Customer will indemnify and hold TFV harmless from any and all claims, demands, damages or losses (including legal costs and expenses) pertaining to any such delay.
4.4 Customer acknowledges that it will be deemed in default hereunder (i) if Customer fails to materially perform any obligations hereunder (including delays in funding beyond the time(s) specified in these Terms and Conditions, including delays due to returned or rejected drawdown wires), or (ii) if Customer files or has filed against it, a petition for bankruptcy or becomes insolvent or has a substantial portion of its property subject to levy, execution or assignment. If Customer is deemed in default hereunder, then TFV may invoke any and all remedies available to it including, without limitation, suspension or termination of service hereunder and declaring all amounts immediately due and payable.
4.5 Customer understands that if Customer’s credit standing deteriorates to the extent that TFV reasonably believes that Customer’s ability to fund its liabilities is materially impaired, TFV may take steps to revise the timing of funds transfer, and to require, among other things, a drawdown wire to be processed at an earlier time than originally designated.
4.6 Customer authorizes TFV to initiate a nominal test drawdown against Customer’s bank account in order to test the validity of banking information provided by Customer to TFV. The amount of such nominal test drawdown shall be credited back to Customer’s bank account on the next business day.
4.7 Customer agrees to comply with and satisfy its obligations under these Payroll Service Terms and Conditions pertaining to ACH Services, and to indemnify TFV and hold TFV harmless from and against any and all claims, damages, losses or expenses incurred by TFV as a result of any breach by Customer of its obligations under these Payroll Service Terms and Conditions pertaining to ACH Services.
4.8 Customer agrees to comply with and satisfy its obligations under the ACH Documents, and to indemnify TFV and hold TFV harmless from and against any and all claims, damages, losses or expenses incurred by TFV as a result of (i) any breach by Customer of its obligations under the ACH Documents, or (ii) any inaccuracy in or incompleteness of any information provided by Customer to TFV under the ACH Documents.
5. Payroll Services – Pay Card Services, Bank Check Services and Positive Pay Check Services
5.1 If Customer elects to receive employee pay card services (“Pay Card Services”), Customer acknowledges that such services shall be provided by a third party service provider (the “Pay Card Service Provider”), who shall process the pay card service transactions. For purposes of clarity, it is noted that the Pay Card Services shall constitute Third Party Services under these Payroll Service Terms and Conditions.
5.2 In connection with the Pay Card Services, Customer agrees to maintain such bank accounts as shall be required under the Pay Card Service Documents and to maintain in such accounts such funds as shall be necessary to timely satisfy Customer’s Pay Card Service obligations. Customer shall and hereby does authorize the Pay Card Service Provider and/or TFV to debit (including by way of ACH debit or reverse wire) Customer’s designated bank account(s) each pay period for the amount of Customer’s Pay Card Service obligations for such pay period so that the Pay Card Service Provider may process and transmit the applicable amounts to the applicable cardholder employees. Customer agrees to maintain such funds in such bank account(s) at least 2 banking days prior to pay date for each pay period so as to provide the Pay Card Service Provider and/or TFV sufficient time to debit the bank account(s) for such pay period. To the extent necessary, Customer shall and hereby does further authorize the Pay Card Service Provider and/or TFV to initiate debit and/or credit entries to Customer’s designated bank account(s) and, if applicable, to employee cardholder accounts, to reverse and/or correct amounts previously posted to such accounts in error. Customer does hereby further authorize TFV to provide to the Pay Card Service Provider such Customer payroll data and other information as shall be necessary to enable the Pay Card Service Provider to perform the Pay Card Services contemplated under these Payroll Service Terms and Conditions and the Pay Card Service Documents.
5.3 Customer acknowledges that, as a condition to receiving Pay Card Services, Customer shall be required to execute and provide to the Pay Card Service Provider such agreements, documents and information (including necessary bank account information) as shall be required by the Pay Card Service Provider to process pay card service transactions on behalf of Customer and/or its employees (collectively, the “Pay Card Service Documents”). Customer further acknowledges that TFV may, upon not less than forty-five (45) days prior written notice to Customer, change the Pay Card Service Provider.
5.4 If Customer elects to receive bank check services (“Bank Check Services”), Customer agrees to maintain such bank accounts as shall be required under the Bank Check Service Documents and to maintain in such accounts such funds as shall be necessary to timely satisfy Customer’s Bank Check Service obligations. Customer shall and hereby does authorize TFV to debit (including by way of ACH debit or reverse wire) Customer’s designated bank account(s) each pay period for the amount of Customer’s Bank Check Service obligations for such pay period so that TFV may process and issue the applicable bank checks (“Bank Checks”). Customer agrees to maintain such funds in such bank account(s) at least 2 banking days prior to pay date for each pay period so as to provide TFV sufficient time to debit the bank account(s) for such pay period.
5.5 TFV will process Bank Check transactions one (1) or more banking days prior to check date for such amounts as are necessary to pay Customer employees that are to be paid by Bank Check. TFV will hold such amounts in an account established by TFV (or TFV’s agent) until check date, will draw checks payable to Customer’s employees on the check date, and will provide those checks to Customer. Customer will then distribute the checks on the check date to the employees. Customer shall not distribute checks prior to check date. TFV shall have no obligation to honor checks distributed to employees prior to check date.
5.6 If a Customer employee fails to present a check for payment within six (6) months of check date, TFV will refund the amount debited for the check, less any balances owed by Customer (including any fees charged by TFV for the transfer of funds back to Customer). Customer will then be responsible for remitting to the employee (or former employee, as the case may be) any amounts remaining due on account of the check and for complying with any state unclaimed property laws with respect to any amounts remaining due on account of the check.
5.7 In the event that a Bank Check is lost, stolen or destroyed, Customer agrees to immediately notify TFV and request that the check be voided. Customer further agrees to return any voided Bank Checks that are ultimately found or recovered.
5.8 If Customer elects to receive positive pay check services (“Positive Pay Check Services”) in connection with the Bank Check Services, Customer hereby authorizes TFV to provide to Customer’s Participating Bank a data file which includes, for each Customer payment account (“Positive Pay Account”) and payment date, the positive pay checks (“Positive Pay Checks”) drawn on such account specifying check number and amount so that such Participating Bank may verify the payment of such Positive Pay Checks. Customer furthers authorize TFV to communicate with and provide information to Customer’s Participating Bank regarding any Positive Pay Checks and/or any other checks or debit or credit items applicable to any Customer Positive Pay Account.
5.9 Customer acknowledges that Customer’s Participating Bank, and not TFV, shall be responsible for verifying the payment of any Positive Pay Checks or other checks drawn on Client’s Positive Pay Account(s), and that TFV shall have no liability or responsibility for any checks honored or dishonored or other amounts charged or credited to Customer’s Positive Pay Accounts due to any error, act or omission of Client’s Participating Bank. Customer shall indemnify TFV and hold TFV harmless from and against any and all claims, damages, losses or expenses incurred by TFV as a result of any checks honored or other amounts charged to Customer’s Positive Pay Accounts due to any error, act or omission of Client’s Participating Bank.
5.10 Customer agrees to comply with and satisfy its obligations under these Payroll Service Terms and Conditions pertaining to Pay Card Services, Bank Check Services and Positive Pay Check Services, and to indemnify TFV and hold TFV harmless from and against any and all claims, damages, losses or expenses incurred by TFV as a result of any breach by Customer of its obligations under these Payroll Service Terms and Conditions pertaining to Pay Card Services, Bank Check Services and Positive Pay Check Services. 5.11 Customer agrees to comply with and satisfy its obligations under the Pay Card Service Documents, and to indemnify TFV and hold TFV harmless from and against any and all claims, damages, losses or expenses incurred by TFV as a result of (i) any breach by Customer of its obligations under the Pay Card Service Documents, or (ii) any inaccuracy in or incompleteness of any information provided by Customer to TFV under the Pay Card Service Documents.
6. Payroll Services – Affordable Care Act (ACA) and Other Third Party Services
6.1 If Customer elects to receive Affordable Care Act related services (“ACA Services”), Customer acknowledges that such services shall be provided by one or more third party service providers (each an “ACA Service Provider” and, collectively, the “ACA Service Providers”), who shall perform the ACA Services. For purposes of clarity, it is noted that ACA Services shall constitute Third Party Services under these Payroll Service Terms and Conditions.
6.2 In connection with the ACA Services, Customer does hereby authorize TFV to provide to the ACA Service Providers such Customer payroll data and other information as shall be necessary to enable the ACA Service Providers to perform the ACA Services.
6.3 If Customer elects to receive workers compensation insurance pay-as-you-go services, commuter benefit plan services, flexible spending account plan services or other third party services (collectively, “Other Third Party Services”), Customer acknowledges that such services shall be provided by one or more third party service providers (each an “Other Third Party Service Provider” and, collectively, the “Other Third Party Service Providers”), who shall perform the Other Third Party Services. For purposes of clarity, it is noted that Other Third Party Services shall constitute Third Party Services under these Payroll Service Terms and Conditions.
6.4 In connection with the Other Third Party Services, Customer does hereby authorize TFV to provide to the Other Third Party Service Providers such Customer payroll data and other information as shall be necessary to enable the Other Third Party Service Providers to perform the Other Third Party Services.
6.5 In connection with the Other Third Party Services, Customer agrees to maintain such bank accounts as shall be required under the Other Third Party Service Documents and to maintain in such accounts such funds as shall be necessary to timely satisfy Customer’s Other Third Party Services obligations. Customer shall and hereby does authorize the Other Third Party Service Providers and/or TFV to debit (including by way of ACH debit or reverse wire) Customer’s designated bank account(s) each pay period for the amount of Customer’s Other Third Party Services obligations for such pay period so that the Other Third Party Service Providers may process and transmit disbursement amounts applicable to such Other Third Party Services. Customer agrees to maintain such funds in such bank account(s) at least 2 banking days prior to pay date for each pay period so as to provide the Other Third Party Service Providers and/or TFV sufficient time to debit the bank account(s) for such pay period. To the extent necessary, Customer shall and hereby does further authorize the Other Third Party Service Providers and/or TFV to initiate debit and/or credit entries to Customer’s designated bank account(s) and, if applicable, to employee accounts, to reverse and/or correct amounts previously posted to such accounts in error.
6.6 Customer acknowledges that, as a condition to receiving ACA Services or Other Third Party Services, Customer shall be required to execute and provide to such ACA Service Provider(s) or Other Third Party Service Providers, as applicable, such agreements, documents and information as shall be required by the ACA Service Provider(s) (collectively, the “ACA Service Documents”) or Other Third Party Service Providers (collectively, the “Other Third Party Service Documents”) to perform the ACA Services or Other Third Party Services, as applicable, on behalf of Customer. Customer further acknowledges that TFV may, upon not less than forty-five (45) days prior written notice to Customer, change the ACA Service Provider(s) or Other Third Party Service Providers.
6.7 Customer agrees to comply with and satisfy its obligations under these Payroll Service Terms and Conditions pertaining to ACA Services and Other Third Party Services, and to indemnify TFV and hold TFV harmless from and against any and all claims, damages, losses or expenses incurred by TFV as a result of any breach by Customer of its obligations under these Payroll Service Terms and Conditions pertaining to ACA Services and Other Third Party Services.
6.8 Customer agrees to comply with and satisfy its obligations under the ACA Service Documents and Other Third Party Service Documents, and to indemnify TFV and hold TFV harmless from and against any and all claims, damages, losses or expenses incurred by TFV as a result of (i) any breach by Customer of its obligations under the ACA Service Documents and Other Third Party Service Documents, or (ii) any inaccuracy in or incompleteness of any information provided by Customer to TFV under the ACA Service Documents and Other Third Party Service Documents.
7 Funding Obligations
7.1 Without limiting the foregoing provisions of Sections 2, 3, 4, 5 and 6 pertaining to Payroll Services, Tax Filing Services, ACH Services, Pay Card Services, Bank Check and Positive Pay Services, and ACH and Other Third Party Services, and the rights and remedies available to TFV thereunder, Customer acknowledges and agrees as follows:
7.1.1 Funding Obligations. Customer acknowledges that TFV is not a lender. As such, as a condition to Customer receiving Payroll Services, Customer will remit or otherwise make available to TFV sufficient, good, and available funds within the agreed-to deadline and via the agreed-to method of delivery to satisfy all of Customer’s third party payment obligations pertaining to the Payroll Services. TFV will not be required to provide Payroll Services to Customer if TFV has not received all funds required to satisfy Customer’s third party payment obligations. Customer will immediately notify TFV if it knows or should know that Customer will not have sufficient funds to satisfy its obligations related to the Payroll Services. If a Customer has a material adverse change in its financial condition, TFV may modify the funding method or deadline by which funds must be made available to TFV for payment to payees.
7.1.2 Suspension. Customer agrees that TFV may suspend Payment Services (a) immediately following notice to Customer (i) that Customer has failed to remit sufficient, good and available funds within the deadline and via the method of delivery as specified by TFV as it relates to the applicable payment services, or (ii) if Customer breaches any rules promulgated by the National Automated Clearing House Association (NACHA) as it relates to TFV conducting ACH transactions in connection with the Payroll Services, and (b) with 24 hours notice if: (i) a bank notifies TFV that it is no longer willing to originate debits from Customer’s account(s) or credits for Customer’s behalf for any reason or (ii) the authorization to debit Customer’s account is terminated or TFV reasonably believes that there is or has been fraudulent activity on the account. If the Payroll Services are terminated or suspended pursuant to this Section, Customer acknowledges that TFV shall be entitled to allocate any funds in TFV’s possession that have been previously remitted or otherwise made available by Customer to TFV relative to the Payroll Services in such priorities as TFV may determine appropriate, including reimbursing TFV for payments made by TFV on Customer’s behalf to a third party. If Payroll Services are terminated by TFV, Customer understands that it will (i) immediately become solely responsible for all of Customers’ third party payment obligations covered by the Payroll Services then or thereafter due (including, without limitation, for payroll tax services, any and all penalties and interest accruing after the date of such termination, other than penalties and interest for which TFV is responsible), and (ii) reimburse TFV for all payments properly made by TFV on behalf of Customer to any payee, which has not been paid or reimbursed by Customer. If Payroll Services remain suspended for 30 days, the affected Payroll Service shall be deemed terminated on the last calendar month day following suspension. If Customer has failed to remit funds in accordance with this Section, TFV may terminate the applicable Payroll Services pertaining to Customer.
7.1.3 Use of Funds. Customer further agrees that Customer’s transfer of funds to TFV (and/or the Tax Service (as defined below) or the ACH Provider (as defined below), if and as applicable) in connection with the Tax Filing Services or the ACH Services, if and as applicable, shall constitute an acknowledgement by Customer that TFV (and/or the Tax Service or the ACH Provider) may comingle such funds with the funds of other clients and may invest such funds as TFV (and/or the Tax Service or the ACH Provider) deems appropriate and that any and all profits and other gain resulting from such investments shall accrue for the benefit of and be the sole property of TFV (and/or the Tax Service or the ACH Provider, as applicable).
8. Payroll Software License
8.1 Payroll Software License. To the extent TFV provides software to Customer as part of the Payroll Services, TFV hereby grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable license to access and use the TFV software provided as part of the Payroll Services, (collectively, the “Payroll Software”), and to use the Payroll Documentation relating thereto solely in support of Customer’s authorized use of the Payroll Software (collectively, the “Payroll Software License”). The term of the Payroll Software License shall continue for so long as Customer receives the Payroll Services.
8.2 License Restrictions. Customer may only use the Payroll Software for its own internal business operations. Customer shall not (i) change, copy, modify, reverse engineer, disassemble, decompile or otherwise attempt to derive the source code of the Payroll Software, or (ii) sublicense the Payroll Software or use the Payroll Software for time-sharing, outsourcing or service bureau use.
9. Payroll Equipment.
9.1 TFV may make Payroll Equipment (including Time Clocks) available to Customer from time to time for use in connection with the Payroll Services. Such Payroll Equipment may be provided on a purchase, lease, rental or other basis.
9.2 Payroll Equipment shall be provided, if and as applicable, by TFV pursuant to these Payroll Service Terms and Conditions, the terms of the applicable Schedule/Proposal(s), and the terms of such additional documents (such as, in the case of Time Clocks, a Supplemental Time Clock Addendum) to be provided by TFV for that purpose. Payroll Services – Carrier Connection Services.
10.1 If Customer elects to have TFV to provide carrier connection services, TFV, or its authorized agent(s), will electronically transmit employee data, including employee benefits enrollment data, to Customer’s carriers or other third parties authorized by Customer, and Customer authorizes TFV and its authorized agent(s), to provide such transmission on Customer’s behalf.
10.2 Customer is responsible for promptly reviewing all records of carrier transmissions and other reports prepared by TFV for validity and accuracy according to Customer’s records, and Customer will notify TFV of any discrepancies promptly after receipt thereof.
10.3 In the event of an error or omission in the carrier connection services caused by TFV, TFV will correct such error or omission, provided, however, that Customer promptly advises TFV of such error or omission. Customer content shall mean (i) payroll, benefits, human resources and similar information provided by Customer or its employees or plan participants, including transactional information, (ii) Customer’s trademarks, trade names, service marks, logos and designs and (iii) any other information or materials provided by Customer, regardless of form (e.g., images, graphics, text, etc.), to be included in the HR & Benefits.
11. Fees; Payments and Taxes.
11.1 Customer agrees to pay TFV the fees set forth in these Payroll Service Terms and Conditions, the applicable Schedule/Proposal(s), and, if applicable, TFV’s invoice(s), for the payroll services, payroll software and equipment provided for hereunder. Fees may be charged on a fixed basis (e.g., a fixed dollar amount per payroll), or on a variable basis (e.g., a variable dollar amount per payroll based upon the number of Customer employees or number of transactions incurred (such as ACH transactions) during the applicable pay period), or a combination of a fixed and variable basis, as set forth on the Schedule/Proposal(s). Customer recognizes that actual costs incurred for items that charged on a variable basis will depend upon actual volume incurred and, as such, may differ from estimated costs that are set forth on the Schedule/Proposal(s) for such items.
11.2 Pricing for As Incurred Payroll Services. TFV may bill Customer for additional payroll services on an “as incurred” basis. These additional “as incurred” payroll services may apply to weekly, bi-weekly or other periodic payroll processing, quarterly payroll processing, or year-end payroll processing. Pricing for “as incurred” payroll services shall be at TFV’s then current rates.
11.3 Customer shall pay such fees by direct debit or such other method as is specified by TFV. Customer authorizes TFV to direct debit, including by way of ACH transaction processing, a designated bank account of Customer for fees charged by TFV. Customer agrees to have sufficient funds in the designated bank account to allow TFV to withdraw fees as provided herein. Customer agrees that direct debit transactions pertaining to fees charged at the time of payroll may be processed as early as two (2) banking days prior to check date (and Customer agrees to have sufficient funds in the designated bank account no later than two (2) banking days prior to check date so that the direct debit transactions may be processed). Customer agrees that direct debit transactions pertaining to fees charged on a monthly basis may be processed as early as two (2) banking days following invoice date (and Customer agrees to have sufficient funds in the designated bank account no later than two (2) banking days following invoice date so that the direct debit transactions may be processed). 11.4 All fees payable to TFV under these Payroll Service Terms and Conditions, the Schedule/Proposal(s), and/or TFV’s invoice(s) therefor shall be paid by Customer by the applicable due date. Initial service fees, license fees and equipment fees (as set forth on the Schedule/Proposal(s) and/or TFV’s invoice(s)) shall be payable upon execution of these Payroll Service Terms and Conditions. A one and a half percent (1.5%) monthly service charge shall be payable by Customer on all balances that are past due. TFV shall be entitled to reimbursement by Customer for any costs of collecting any amounts that are past due, including reasonable attorneys’ fees.
11.5 TFV may increase the fees charged under these Payroll Service Terms and Conditions, the Schedule/Proposal(s) and/or TFV’s invoice(s), pertaining to any given product(s) or service(s) upon not less than forty-five (45) days prior written notice to Customer. Customer shall be deemed to have accepted and agreed to any such increase unless Customer elects to terminate the applicable product(s) or service(s) by providing written notice to TFV not less than fifteen (15) days prior to the effective date of the increase. Notwithstanding the foregoing, TFV shall not increase the fees charged pertaining to any given product(s), service(s) or software provided by TFV during the twelve month initial term (or extended initial term, if applicable) for such product(s), service(s) or software as set forth on the Schedule/Proposal(s).
11.6 All fees charged under these Payroll Service Terms and Conditions, the Schedule/Proposal(s) and, if applicable, TFV’s invoice(s) are exclusive of, and Customer shall be responsible for, all applicable federal, state or local sales, use, excise, export or other applicable taxes (other than taxes based upon the net income of TFV). Customer shall pay or reimburse TFV for any such taxes and TFV may add any such taxes to invoices submitted to Customer by TFV.
11.7 Without limiting any other right or remedy of TFV under these Payroll Service Terms and Conditions, TFV reserves the right to suspend or terminate Customer’s access to the Payroll Services and/or Payroll Software under these Payroll Service Terms and Conditions (or any Third Party Services, Third Party Software or Third Party Equipment) in the event that any amount due under these Payroll Service Terms and Conditions, any Schedule/Proposal(s), or any invoice(s) is more than thirty (30) days past due. Such suspension or termination shall not relieve Customer of its obligation to pay any amount(s) due.
11.8 In the event that Customer does not “go live” with respect to a given service, license or product on the mutually agreed upon Start Date for such service, license or product specified on the Schedule/Proposal(s), then TFV shall have the right to charge Customer a minimum service fee equal to 25% of the projected monthly cost of such service, license or product as set forth on the Schedule/Proposal(s), as applicable, billed monthly, until Customer “goes live” with respect to such service, license or product; provided, however, that TFV shall not charge a minimum service fee if Customer’s failure to “go live” is due to a failure of TFV to satisfy its obligations under these Payroll Service Terms and Conditions. In addition, TFV shall have the right to retain any non-refundable deposits provided by Customer unless Customer’s failure to “go live” is due to a failure of TFV to satisfy its obligations under these Payroll Service Terms and Conditions.
12. Term and Termination.
12.1 Term. The term of these Payroll Service Terms and Conditions (the “Term”) shall commence upon the earlier to occur of the execution of a Schedule/Proposal by Customer or, if earlier, the commencement or delivery of Payroll Services by TFV, and shall continue until all Schedule/Proposal(s) issued under these Payroll Service Terms and Conditions shall have expired or been terminated.
12.2 Term of Schedule/Proposal(s). Schedule/Proposal(s) issued under these Payroll Service Terms and Conditions shall (with respect to the payroll services, payroll licenses and payroll equipment identified thereon) commence upon the Start Date specified on the Schedule/Proposal(s) or, if earlier, the commencement or delivery of the applicable services, licenses and equipment by TFV, and shall continue for an initial term of 36 months (or such other term, if any, set forth on the Schedule/Proposal(s)) (the “Initial Term”). Thereafter, Schedule/Proposal(s) shall renew (with respect to the services, licenses and equipment identified thereon) for successive one (1) year renewal terms (each a “Renewal Term”) unless either party provides written notice to the other of its election not to renew (with respect to any such services, licenses and equipment ) not less than sixty (60) days prior to the expiration of the Initial Term or the then current Renewal Term, as the case may be.
12.3 Termination for Breach. Notwithstanding the foregoing, either party may terminate any Schedule/Proposal(s) issued hereunder at any time upon written notice to the other party in the event that the other party has committed a material breach of these Payroll Service Terms and Conditions and such breach remains uncured thirty (30) days after written notice of such breach has been so provided.
12.4 Outstanding Fees. Termination of any Schedule/Proposal(s) issued hereunder shall not relieve Customer of its obligation to pay any fees or other amounts accrued or payable to TFV prior to the effective date of termination.
12.5 Access to Customer Data upon Termination. TFV shall, upon Customer request following termination, provide Customer with its data in computer readable format. TFV shall have the right to charge Customer professional service fees for providing such data based upon TFV’s then applicable hourly rates for professional services.
12.6 In addition to the termination rights set forth elsewhere in these Terms and Conditions, TFV may immediately terminate the Payroll Services upon written notice to Customer in the event that: (i) Customer is in default of any of its obligations under these Payroll Service Terms and Conditions or, if and as applicable, the Tax Filing Documents, the ACH Documents or other service documents (and at least ten (10) days shall have elapsed from the date of notice of such default to Customer); (ii) Customer is bankrupt, insolvent or subject to receivership, or takes the benefit of any act now or hereafter in force for bankrupt or insolvent debtors, or files any proposal or makes any assignment for the benefit of creditors or any arrangement or compromise; or (iii) TFV, in its sole discretion, determines that a material adverse change has occurred in the financial condition of Customer or that Customer is unable to pay its debts as they become due in the ordinary course of business. Any such termination shall not relieve Customer of its obligations accruing prior to the date of termination including, but not limited to, any obligation of Customer to pay for services rendered prior to the date of termination.
13. Third Party Service Providers.
13.1 Certain third party providers (“Third Party Providers”) may offer services (“Third Party Services”), software (“Third Party Software”), and/or equipment (“Third Party Equipment”) related or connected to the Payroll Services, the Payroll Software, and/or the Payroll Equipment or that work in conjunction with the Payroll Services, the Payroll Software, and/or the Payroll Equipment. 13.2 Except as expressly set forth herein, TFV does not warrant and is not responsible for any such Third Party Services, Third Party Software, or Third Party Equipment and any exchange of data or other interaction between Customer and a Third Party Provider and any purchase or license by Customer of Third Party Services, Third Party Software, or Third Party Equipment is solely between Customer and such Third Party Provider.
14. Confidential Information.
14.1 Definition of Confidential Information. The parties acknowledge that, in the course of providing or receiving the services, licenses and/or products contemplated under these Payroll Service Terms and Conditions, each party (in this context, the “disclosing party”) may provide the other party (in this context, the “receiving party”) with certain confidential information of the disclosing party including, without limitation, business information, technical information, software information (including source and/or object code), trade secrets, customer lists, customer information, supplier information, licensor information, employment information, employee personal information, and the terms of these Payroll Service Terms and Conditions (collectively, “Confidential Information”). Notwithstanding the foregoing, Confidential Information shall not include information: (i) which is independently developed by the receiving party without the use of the disclosing party’s Confidential Information; (ii) which is lawfully received by the receiving party free of restriction from another source having the right to so furnish such information; (iii) after it has become generally available to the public without breach of any confidentiality obligations; (iv) which at the time of disclosure to the receiving party was known to the receiving party free of restriction; or (v) which is required to be disclosed by law, regulation or order of a court or other governmental body.
14.2 Preservation, Use and Disclosure of Confidential Information. Each party agrees (i) to preserve the confidentiality of all Confidential Information that is provided by the other party under these Payroll Service Terms and Conditions, (ii) to not use such Confidential Information for any purpose other than the purposes contemplated under these Payroll Service Terms and Conditions, and (iii) to not disclose such Confidential Information to any third party except as reasonably necessary in the performance of the receiving party’s obligations under these Payroll Service Terms and Conditions (including, without limitation, by TFV to Third Party Providers in connection with their provision of Third Party Services, Third Party Software and/or Third Party Equipment) or as otherwise expressly provided for under these Payroll Service Terms and Conditions.
14.3 Protection of Confidential Information. Each party agrees to maintain commercially reasonable security measures to safeguard the Confidential Information of the other party including, without limitation, security measures designed to safeguard the Confidential Information against improper access, disclosure and use.
15. Intellectual Property Rights.
15.1 Ownership of Payroll Software. Customer acknowledges and agrees that the Payroll Software, and any modifications, customizations, updates, add-ons and interfaces (including APIs) thereof or thereto (including, without limitation, any modifications, customizations, updates, add-ons and interfaces thereof or thereto developed or made by TFV for Customer) and the documentation relating thereto, are, and shall at all times remain, the property of TFV (and, if and as applicable, any third parties which have granted TFV the right to license the same) and Customer shall have no right or interest in or to any of the foregoing other than the rights expressly granted under these Payroll Service Terms and Conditions.
15.2 Customer shall be responsible for updating and maintaining the completeness and accuracy of all Customer Content. Customer shall be responsible for obtaining all required rights and licenses to use and display all Customer Content in connection with the Payroll Services. Customer hereby grants to TFV a non-exclusive, non-transferable license to use, edit, modify, adapt, translate, exhibit, publish, reproduce, copy (including back-up copies) and display the Customer Content as reasonably necessary to provide the Payroll Services or perform the services covered under these Payroll Service Terms and Conditions.
15.3 No Implied Licenses. Other than the rights expressly granted in these Payroll Service Terms and Conditions, each party retains all of its rights to its technologies, trade secrets and other intellectual property and proprietary rights. No implied licenses are granted herein.
16. Warranties.
16.1 By TFV. TFV represents and warrants to Customer that the Payroll Software shall function substantially in accordance with the specifications pertaining to the Payroll Software (as set forth in the Payroll Documentation). Customer’s sole and exclusive remedy for breach of the warranty set forth in this Section is the correction or replacement of the Payroll Software by TFV, at TFV’s option and expense, and such remedy is in lieu of all other obligations and liabilities on the part of TFV.
16.2 By Customer. Customer represents and warrants to TFV that it shall comply with all applicable Federal, state and local laws, rules and regulations in connection with its use of the Payroll Services, the Payroll Software and the Payroll Equipment (and any applicable Third Party Services, Third Party Software and Third Party Equipment) including, without limitation, all applicable data privacy and export control laws, rules and regulations.
16.3 Disclaimer of Warranties. TFV DOES NOT WARRANT THAT THE PAYROLL SERVICES, THE PAYROLL SOFTWARE OR THE PAYROLL EQUIPMENT WILL MEET COMPANY’S REQUIREMENTS OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW AND EXCEPT AS SET FORTH IN SECTION 16.1, TFV DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS AND IMPLIED, CONCERNING OR RELATED TO THE PAYROLL SERVICES, THE PAYROLL SOFTWARE AND THE PAYROLL EQUIPMENT INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY STATUTORY WARRANTIES OF NON-INFRINGEMENT.
17. Limitation of Liability.
17.1 TO THE FULLEST EXTENT ALLOWED BY LAW, IN NO EVENT SHALL TFV BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS ARISING OUT OF OR IN RELATION TO THESE PAYROLL SERVICE TERMS AND CONDITIONS, EVEN IF TFV HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL TFV BE LIABLE FOR THE ACTS OR OMISSIONS OF ANY OTHER PERSON OR ENTITY INCLUDING, BUT NOT LIMITED TO, THE ACTS OR OMISSIONS OF COMPANY, THE TAX SERVICE, THE ACH PROVIDER OR ANY OTHER THIRD PARTY PROVIDER. NOTWITHSTANDING ANY OTHER PROVISION OF THESE PAYROLL SERVICE TERMS AND CONDITIONS TO THE CONTRARY, IN NO EVENT SHALL TFV BE LIABLE FOR ANY DAMAGES FROM ANY CAUSE OR CLAIM WHATSOEVER ARISING OUT OF OR RELATED TO THESE PAYROLL SERVICE TERMS AND CONDITIONS OR ANY PAYROLL SERVICE, PAYROLL SOFTWARE OR PAYROLL EQUIPMENT PROVIDED HEREUNDER (OR THEREUNDER) IN EXCESS OF THE AMOUNTS TFV HAS BEEN PAID HEREUNDER (OR THEREUNDER) DURING THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH SUCH CAUSE OR CLAIM AROSE.
18. Miscellaneous.
18.1 Notices. All notices required or permitted to be given under these Payroll Service Terms and Conditions shall be in writing to the parties at (i) in the case of TFV, following address: 260 Crossways Park Drive, Woodbury, New York 11797, and (ii) in the case of Customer, the address set forth on the applicable Schedule/Proposal(s) (or to such other address as TFV or Customer may designate by written notice to the other), and shall be effective upon receipt. Written notice shall be made in the form of certified letter, letter delivered by Federal Express (or other reputable overnight delivery service which maintains a record of delivery), confirmed facsimile transmission or acknowledged receipt of electronic mail.
18.2 Choice of Law; Choice of Forum. These Payroll Service Terms and Conditions and all related Schedule/Proposal(s) shall be governed by the laws of the State of California, without reference to the choice of law provisions thereof. The parties hereby consent to the exclusive personal jurisdiction of the state and federal courts located in the State of California for any action, suit or proceeding relating to these Payroll Service Terms and Conditions and all related Schedule/Proposal(s), and do hereby waive any objection to venue or claim of forum non conveniens with respect to such courts.
18.3 Injunctive Relief. Customer agrees that it would be impossible or inadequate to measure and calculate TFV’s damages from any breach of the provisions set forth in Section 14 and Section 15 herein. Accordingly, Customer agrees that if Customer breaches any of the provisions of such sections, TFV will have available, in addition to any other right or remedy available at law or in equity, the right to obtain an injunction from a court of competent jurisdiction restraining such breach or threatened breach. Customer further agrees that no bond or other security shall be required in obtaining such equitable relief and Customer hereby consents to the issuance of such injunction.
18.4 Independent Contractors. The parties are independent contractors with respect to the services, licenses and equipment contemplated under these Payroll Service Terms and Conditions. Except as expressly set forth in these Payroll Service Terms and Conditions, neither party shall be deemed to be an employee, agent or legal representative of the other for any purpose and neither shall have any right, power or authority to create any obligation or responsibility on behalf of the other.
18.5 Survival. Sections 13 through 18 (together with any other provisions which would logically survive the termination of these Payroll Service Terms and Conditions) shall survive the termination of these Payroll Service Terms and Conditions.
18.6 Entire Agreement. These Payroll Service Terms and Conditions (together with all applicable Schedule/Proposal(s)) and the Agreement) contain the entire agreement of the parties with respect to the subject matter hereof.
18.7 Binding Effect; Assignment. These Payroll Service Terms and Conditions (and all applicable Schedule/Proposal(s)) shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Customer may not assign these Payroll Service Terms and Conditions (or any related Schedule/Proposal(s)) without TFV’s prior written consent. Any attempted assignment contrary to the foregoing shall be void. TFV may assign these Payroll Service Terms and Conditions (and any applicable Schedule/Proposal(s)) to any affiliate of TFV or to any entity which acquires all or part of the business or assets of TFV. TFV may subcontract any of its service obligations under these Payroll Service Terms and Conditions to a subcontractor selected by TFV.
18.8 Severability. Any provision of these Payroll Service Terms and Conditions (or any applicable Schedule/Proposal(s)) which is unenforceable in any jurisdiction, shall be ineffective only as to that jurisdiction, and only to the extent of such unenforceability, without invalidating the remaining provisions hereof (or thereof).
18.9 Waiver. No failure or delay by either party in exercising any right or remedy under these Payroll Service Terms and Conditions (or any applicable Schedule/Proposal(s)) shall operate as or be deemed to be a waiver of any such right or remedy.
18.10 Force Majeure. Neither party shall be liable to the other party for any delay or failure in the performance of these Payroll Service Terms and Conditions or for loss or damage of any nature whatsoever suffered by such other party due to disruption or unavailability of communication facilities, utility or Internet service provider failure, acts of war, acts of vandalism, lightning, fire, strike, pandemic or any other cause beyond such party’s reasonable control.
18.11 Amendment. TFV may modify any term of these Payroll Service Terms and Conditions by providing not less than forty-five (45) days prior written notice to Customer (such notice to include the nature of and effective date of any such modification). Customer shall be deemed to have accepted and agreed to any such modification unless Customer elects to terminate the Payroll Services by written notice to TFV not less than fifteen (15) days prior to the effective date of the modification. Notwithstanding the foregoing, TFV may modify any term of these Payroll Service Terms and Conditions to the extent reasonably necessary to conform to the requirements of any applicable law, rule or regulation or to conform to requirements imposed by the Tax Service Provider, the ACH Provider or the Pay Card Service Provider in connection with, if and as applicable, the provision of the Tax Filing Services, the ACH Services or the Pay Card Services, respectively, by providing not less than forty-five (45) days prior written notice of the modification to Customer (such notice to include the nature of and effective date of any such modification). Customer shall be deemed to have accepted and agreed to any such modification unless Customer elects to terminate the Payroll Services by written notice to TFV prior to the effective date of the modification.

 

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