Terms and Conditions

Terms of Service Agreement

Review these Terms of Service (“Agreement”) thoroughly. By accepting electronically (for example, clicking “I Accept”), installing, accessing or using Service, you agree to these terms. If you do not agree to this Agreement, then you may not use the Service. This Agreement contains the terms and conditions that govern the use of, and the terms and conditions upon which OnPay, Inc. (“Service Bureau”), will provide to you (“Client”), certain payroll processing, payroll tax service and other related payroll services (collectively the “Service”). The Service may be accessed through this website (“Website”) or by means of an application on and accessed (the Website at which the Service is offered is referred to as the “Service Site”).

 

1. SERVICE.

 

Service Bureau will provide Client the Service in accordance with this Agreement. A minimum of ten (10) business days before the initial payroll processing date, Client shall submit the completed and executed documents Service Bureau requires for providing the Service, which documents shall include any federal, state or local powers of attorney required by Service Bureau, Client account information and any additional information requested by Service Bureau. Subsequent to the initial payroll processing, Client will complete and execute any renewals, amendments or replacements of the aforementioned documents which Service Bureau deems necessary.

 

2. TAX SERVICES; LIABILITY.

 

In order for the Service to be instituted, Client must submit accurate wage and payroll information to Service Bureau during the enrollment process. The wage and payroll information must be reconciled with Client’s payroll tax returns for the current calendar year and Client’s wage and payroll tax information for the current quarter. Thereafter, Client shall timely and accurately (a) update all wage and payroll information as necessary to reflect changes and (b) respond with additional information requested from time to time by Service Bureau. It is Client’s responsibility to submit complete and accurate information to Service Bureau in connection with the Service. Any penalty or interest incurred due to inaccurate information provided by Client will be the sole responsibility of Client. Client further agrees to not hold Service Bureau accountable for such liability. Service Bureau, at its option, may decide not to file Client’s payroll tax returns, pay Client’s payroll taxes or otherwise process Client’s payroll if there are any unresolved problems with any information requested by Service Bureau or submitted by Client. Service Bureau’s sole liability and Client’s sole remedy for Service Bureau’s negligent failure to perform the payroll tax portion of the Service shall be (i) Service Bureau will remit the payroll taxes received from Client to the appropriate taxing authority and (ii) Service Bureau will reimburse Client or pay directly to the appropriate taxing authority any penalties resulting from such negligent error or omission by Service Bureau.

 

3. LIMITED SOFTWARE LICENSE.

 

Service Bureau hereby grants Client a limited, nonexclusive, royalty free license to access and utilize Service Bureau’s application service provider software (the “Software”) solely for the purpose of facilitating Service Bureau’s collection of the wage and payroll information and other information Service Bureau needs to furnish Services to Client. Client shall access the Software solely through the Service Bureau’s Site. Service Bureau will not transfer legal title or physical possession of any Software to Client. Client shall not be entitled to download any Software onto Client’s servers, to duplicate or make copies of any Software, or to use the Software for any purpose other than as described in this paragraph. Client also may not license, sublicense, or otherwise transfer any rights in the Software to another person or entity without the prior written permission and continued control of Service Bureau. The parties acknowledge that the Software is of no intrinsic value to Client, and no portion of any of the fees related to the Service or charges paid by Client to Service Bureau hereunder shall be treated as a royalty for the limited license that Service Bureau is granting to Client hereunder.

 

4. ACCOUNT DEBITING.

 

A. On or prior to Client’s payroll direct deposit and/or payroll tax deposit date or other applicable settlement or due date, Client authorizes Service Bureau to initiate debit entries to Client’s account specified above (“Client’s Account”) at the depository financial institution the Routing Number of which is given above (“Depository”), and to debit Client’s Account in such amounts as are necessary to (i) fund Client’s direct deposits, (ii) pay any fees or charges associated with the Service, including, without limitation, finance charges, (iii) pay Client’s payroll taxes, (iv) pay any debit, correcting or reversing entry initiated pursuant to this Agreement which is later returned to Service Bureau, and (v) pay any other amount that is owing under this Agreement or in connection with the Service. This authorization is to remain in full force and effect until Service Bureau has received written notice from Client of its termination in such time and such manner as to afford Service Bureau and Depository a reasonable opportunity to act upon it. Client will maintain in Client’s Account as of the applicable settlement date and time immediately available funds sufficient to cover all credit entries Client originates through Service Bureau. Client’s obligation to pay Service Bureau for each credit entry matures at the time Service Bureau transmits or otherwise delivers the credit entry to the Automated Clearing House (“ACH”) or gateway operator and is unaffected by termination of the Service. Service Bureau may set off against any amount it or an Affiliate owes to Client in order to obtain payment of Client’s obligation as set forth in this Agreement. Client acknowledges that the origination of ACH transactions to its account must comply with the provisions of U.S. law. Amounts withdrawn for payroll taxes will be held by Service Bureau at Service Bureau’s financial institution (the “Payroll Tax Account”) until such time as those payments are due to the appropriate taxing agencies, and no interest will be paid to the Client on these amounts.

B. If Client does not have sufficient funds in Client’s Account to pay disbursements, fees, payroll taxes or any other amounts due under this Agreement at the time required, or if Client refuses to pay, Service Bureau may (i) debit the Payroll Tax Account or any account at Service Bureau’s financial institution or any Affiliate owned in whole or in part by Client to pay disbursements, fees or charges, payroll taxes, or other amounts due, (ii) refuse to pay any unremitted payroll taxes, in which case the payroll tax liability will become the sole responsibility of Client, (iii) refuse to perform further services, and/or (iv) immediately terminate this Agreement. Service Bureau may assess finance charges on any amounts owing and unpaid ten (10) days after demand. Finance charges are assessed at a rate of 1.5% per month (18% per annum) or the highest amount permitted by law, whichever is less. Service Bureau may recover from Client any costs including, without limitation, reasonable attorneys’ fees and expert witnesses’ fees Service Bureau may incur in connection with any termination of this Agreement or collection of amounts due hereunder.

 

5. SERVICE FEES AND CHARGES.

 

For Service offered on a payment or subscription basis, the following terms apply, unless OnPay, Inc. or its third party affiliate notifies you otherwise in writing. Client agrees to pay Service Bureau for the Service at Service Bureau’s current rates. Client will also reimburse Service Bureau for sales, use and similar taxes arising from this Agreement that federal, state or local governments may impose.

 

6. CHANGES TO THE SERVICE.

 

Service Bureau reserves the right to change the terms, conditions, and fees for the Service at any time. Service Bureau will endeavor to, but shall not be obligated to, provide thirty (30) days prior notice of any material change, including fees. Notice may be provided in writing, electronically or via the Website. If Client does not wish to be bound by such change, it may discontinue using and terminate the Service before the change becomes effective. If Client continues to use the Service after the change becomes effective, it will be bound by the change. Client has the responsibility to assure that Client’s address, including any electronic address(es), and account information in Service Bureau’s records is accurate. The timing of an advance notice of change may be shortened when permitted or required by law.

 

7. VERIFICATION OF DATA.

 

A. Service Bureau will notify Client via electronic communication or by other means when all data necessary to begin the Service has been received and the enrollment process has been completed. Client shall then, prior to submitting its first payroll, review for completeness and accuracy the Payroll Information (as hereinafter defined). For purposes of this Agreement, “Payroll Information” shall mean all information posted for Client’s review on the specified portion of the Service Site including, but not limited to, that which is used to calculate and pay employee payroll, track Clientdefined employee benefits, pay payroll taxes to applicable taxing agencies in compliance with the laws and regulations of such taxing agencies, produce payroll tax returns and W-2 statements and print checks on Client’s account (if applicable). Client must correct incorrect or missing Payroll Information, either by itself or by notifying Service Bureau in the manner specified in the electronic communication and within the time period specified therein. Client shall be fully responsible for the accuracy of all information supplied by it and/or approved by it, including, without limitation any IRS or other penalties and/or interest arising therefrom.

B. Client agrees that by submitting each payroll (including the first payroll): (i) Client has approved all Payroll Information, (ii) Client has represented and warranted to Service Bureau that no Payroll Information submitted to Service Bureau will result in Entries that would violate the sanctions program of the Office of Foreign Assets Control of the U.S. Treasury or any other applicable laws or regulations, (iii) Client has waived and released any claim against Service Bureau arising out of any errors in the Payroll Information which Client has not itself corrected or has not requested Service Bureau to correct, and (iv) any subsequent request for corrections will be considered special handling and additional fees may be charged. Final audit responsibility rests with Client. Service Bureau will not have any responsibility for verifying the accuracy of any data Client provides or directly inputs via the Service Site or any other method.

C. Service Bureau may permit, but shall not be obligated to permit Client’s Payroll Approver, a designated Client representative and/or designated Client Administrator to communicate with Service Bureau by telephone, electronic mail or other means about the Service. Service Bureau has implemented security procedures for the purpose of verifying the identity of Client’s Payroll Approver, Client representative and/or designated Client Administrator (as applicable), including the use of unique security identification numbers generated by the Service Site and other security protocols. Client acknowledges that any such telephone communication or electronic mail communication or other means of communication will be made available for Client’s benefit and convenience, that the security procedures instituted by Service Bureau are commercially reasonable methods of providing security, that any Payroll Information, Entries or other instructions communicated to Service Bureau will be deemed to have been fully authorized by Client and Client shall be fully responsible for the accuracy of such information including, without limitation, any IRS or other penalties and/or interest arising therefrom; and that, notwithstanding such deemed authorization, Service Bureau may in its sole discretion refuse to accept or act upon any such instructions.

 

8. SECURITY PROCEDURE.

 

A. Client will designate and authorize one or more individual users of the Service with authority to act on behalf of and to bind the Client (designated as “Client’s Payroll Approver,” “Principal” and “Administrator”), which authorized individuals will access the Service by entering a confidential user ID and password created by following the instructions provided on the a specified portion of the Service Site and which will entitle them, depending on their designation (whether as Client’s Payroll Approver, Principal or Administrator), to have authority to review, modify and/or approve on behalf of Client. Client’s Payroll Approver will approve and submit the Payroll Information thereby authorizing Service Bureau to create and transmit ACH credit or debit entries (“Entries”; each, an “Entry”) necessary to process Client’s payroll and payroll tax transactions, by entering his or her confidential user ID and password which he or she has created by following the instructions provided on the specified portion of the Service Site.

B. Client acknowledges that Service Bureau has implemented the security procedures described above for the purpose of verifying the authenticity of an instruction approving, releasing, cancelling or amending the Payroll Information used to create Entries (each, a “Payment Order”) to be originated by Service Bureau for the benefit of Client, and not for the purpose of detecting errors in Payment Orders. Client has reviewed various security procedures including the foregoing and has determined that the security procedures designated above constitute a commercially reasonable method of providing security against unauthorized Payment Orders and best meets Client’s requirements, given the size, type and frequency of the Payment Orders it will issue to Service Bureau.

C. Client will, and will cause its employees to, take reasonable steps to maintain the confidentiality of the security procedure and the user IDs and passwords and related instructions provided by Service Bureau. If Client believes or suspects that any such user IDs and passwords or related instructions have been known or accessed by unauthorized persons, Client will immediately notify Service Bureau in a manner affording Service Bureau a reasonable opportunity to act on the information, and Client acknowledges that failure to immediately notify Service Bureau could result in loss of funds and unauthorized access to confidential information concerning Client and its employees. Service Bureau reserves the right to prevent access to the Service should Service Bureau have reason to believe the confidentiality of the security procedure or the confidentiality of the user IDs and passwords have been compromised.

D. Client will be bound by any Payment Order received and verified by Service Bureau in compliance with the designated security procedure, and Client shall indemnify and not hold Service Bureau liable from and against any loss suffered or liability incurred by, or arising from, the execution of a Payment Order in good faith and in compliance with such security procedures.

E. If a Payment Order describes the receiver inconsistently by name and account number (i) payment may be made on the basis of the account number even if it identifies a person different from the named receiver or (ii) Service Bureau may in its sole discretion refuse to accept or may return the Payment Order. If a Payment Order describes a participating financial institution inconsistently by name and identification number, the identification number may be relied upon as the proper identification of the financial institution. If a Payment Order identifies a non-existent or unidentifiable person or account as the receiver or the receiver’s account, Service Bureau may in its sole discretion refuse to accept or may return the Payment Order.

F. Client will promptly notify Service Bureau in writing of the identity of each person authorized to receive information regarding the security procedure (each singly or in the aggregate, an “Authorized Person”), including but not limited to Client’s Payroll Approver, and of any change in an Authorized Person. Service Bureau will have a reasonable time after receipt of a notice to act on it.

 

9. ACH ORIGINATION.

 

A. The Service will enable Client by using the Service Site to enter the Payroll Information and to approve and submit it to Service Bureau for creation, formatting and transmission of Entries in accordance with the Rules (as defined below). Service Bureau may reject any Payroll Information or Entry which does not comply with the requirements in this Agreement or the Rules or with respect to which Client’s Account does not contain sufficient available funds to pay for the Entry. If any Payroll Information or Entry is rejected, Service Bureau will make a reasonable effort to notify Client promptly so that Client may correct such Payroll Information or request that the Service Bureau correct the Entry and resubmit it. A notice of rejection will be effective when given. Service Bureau will have no liability to Client by reason of the rejection of any Payroll Information or Entry, the fact that notice is not given at an earlier time than that provided for in this Agreement or for any loss resulting from Service Bureau’s failure to provide notice. If Client requests that Service Bureau repair an Entry on Client’s behalf, Service Bureau may endeavor to do so; provided, however, that Service Bureau will not be liable for its failure to make any requested repair.

B. Client will have no right to cancel or amend any Payroll Information received by Service Bureau after it has been approved by Client’s Payroll Approver and submitted to Service Bureau. However, if Client’s request complies with the security procedure, Service Bureau may use reasonable efforts to act on it prior to transmitting the Entries to the ACH or gateway operator, but will have no liability if the cancellation or amendment is not effected. Client will reimburse Service Bureau for any expenses, losses or damages Service Bureau may incur in effecting or attempting to affect Client’s request.

C. Except for Entries created from Payroll Information that have been reapproved and resubmitted by Client in accordance with the requirements of this Agreement, Service Bureau will have no obligation to retransmit a returned Entry to the ACH or gateway operator if Service Bureau complied with the terms of this Agreement with respect to the original Entry.

D. Service Bureau will process the Payroll Information and Entries in accordance with its then current processing schedule, provided (i) the Payroll Information is approved by Client and received by Service Bureau no later than Client’s applicable cut-off time on a business day and (ii) the ACH is open for business on that business day. If Service Bureau receives approved Payroll Information after Client’s cut-off time, Service Bureau will not be responsible for failure to process the Payroll Information on that day. If any of the requirements of clause (i) or (ii) of this Subsection are not met, Service Bureau will use reasonable efforts to process the Payroll Information and transmit the Entries to the ACH with the next regularly scheduled file created by Service Bureau which is on a business day on which the ACH is open for business.

E. Origination, receipt, return, adjustment, correction, cancellation, amendment and transmission of Entries must be in accordance with the Operating Rules of the ACH in which Service Bureau is a participant and, with respect to credit entries which constitute Payment Orders, Article 4A of the Uniform Commercial Code as adopted in the state whose law governs this Agreement, as both are varied by this Agreement and the other Contract Documents (as defined below), and as both are amended from time to time (the “Rules”). Client agrees that it will not submit Payroll Information that will result in Entries that would violate the sanctions program of the Office of Foreign Assets Control of the U.S. Treasury or any other applicable laws or regulations. Client acknowledges that it has had an opportunity to review and agrees to comply with and be bound by the Rules. Client will be responsible for promptly obtaining all future amendments.

F. Any credit Service Bureau gives to Client is provisional until Service Bureau receives final settlement and the Entry for which credit was given is deemed to be finally paid as provided in this Agreement, the Rules and all laws, rules and regulations governing any aspect of the Entry, including the laws, rules and regulations of the country to which the Entry was sent. If Service Bureau does not receive final settlement, it is entitled to a refund from the credited person and Client will not be deemed to have paid that person.

G. At Client’s request, Service Bureau will make a reasonable effort to reverse an Entry, but will have no responsibility for the failure of any other person or entity to honor Client’s request. Client agrees to reimburse Service Bureau for any expenses incurred in attempting to honor such request.

H. Client expressly acknowledges that Service Bureau does not intentionally or knowingly engage in or support International ACH Transactions (“IATs”), as defined in the Operating Rules of the National Automated Clearing House Association (“NACHA Rules”). Client represents and warrants that (i) the direct funding for the Entries originated by Service Bureau on behalf of Client does not come from or involve a financial agency office that is located outside the territorial jurisdiction of the United States; (ii) Client will not instruct Service Bureau to create, originate or transmit Entries that are IATs or Entries using a Standard Entry Class Code (as defined in the NACHA Rules) other than IAT if such Entries are required to be IATs under the NACHA Rules; and (iii) Client will not engage in any act or omission that causes or results in Service Bureau creating, originating or transmitting an IAT or a payment that should have been categorized as an IAT pursuant to the NACHA Rules. Service Bureau may, in its sole discretion, temporarily or permanently suspend providing the Service to Client, without liability, if Service Bureau has reason to believe that Client has breached any of foregoing representations and warranties in this paragraph. Client shall indemnify and hold Service Bureau not liable from any losses incurred by Service Bureau in connection with Client’s breach of the foregoing representations and warranties in this paragraph.

I. Client acknowledges that it is the originator of each Entry and that under the Rules, Service Bureau makes certain warranties with respect to each Entry. Client agrees to reimburse Service Bureau for any loss Service Bureau incurs, including its reasonable attorneys’ fees and legal expenses, as the result of a breach of a warranty made by Service Bureau unless the breach resulted solely from Service Bureau’s own gross negligence or intentional misconduct.

J. Client acknowledges that under the Rules, Service Bureau indemnifies certain persons. Client agrees to reimburse Service Bureau for any loss Service Bureau incurs, including its reasonable attorneys’ fees and legal expenses, as the result of the enforcement of an indemnity, unless enforcement resulted solely from Service Bureau’s own gross negligence or intentional misconduct.

 

10. TERM; TERMINATION.

 

Subject to Client’s compliance with the terms of this Agreement and satisfactory completion of the enrollment process, Service Bureau will commence provision of the Service to the Client. Service Bureau may, at its discretion, decline to offer the Service to Client in the event that the enrollment process is not satisfactorily completed, Service Bureau is unable to verify satisfactory credit of the Client and/or its principals and/or for other lawful business reasons. The Service will continue until such time as Client or Service Bureau gives thirty (30) days’ prior written notice, unless termination is for cause. Service Bureau may immediately terminate this Agreement upon notice to Client if Client is in violation of a material provision of the Contract Documents, including but not limited to, the payment when due of any fees, charges, or payroll taxes, or if Client chooses not to accept a change in any term or condition of this Agreement or Client misrepresents any data or information required by Service Bureau in connection with the Service or at any other time. Service Bureau may immediately terminate this Agreement without notice to Client if Client files, or has filed against it, a petition under the U.S. Bankruptcy Code or a similar state or federal law. The termination of the Service or this Agreement will not affect Client’s or Service Bureau’s rights with respect to transactions which occurred before termination.

 

11. ALTERNATIVE DISPUTE RESOLUTION.

 

Notwithstanding any other provision in this Agreement, if either Client or Service Bureau have any unresolvable dispute, controversy or claim, whether founded in contract, tort, statutory or common law, concerning, arising out of or relating to this Agreement or the Service, including any claim regarding the applicability, interpretation, scope or validity of this arbitration clause and/or this Agreement (a “Claim”) and upon the demand of either party, it will be settled by individual (not class or class-wide) binding arbitration administered by the American Arbitration Association (AAA) in accordance with the then current Commercial Financial Disputes Arbitration Rules, including any expedited procedures. A demand that a Claim be submitted to arbitration may be made before the initiation of any legal proceeding or within ninety (90) days following the service of a complaint, thirdparty complaint, cross-claim or counterclaim and if a party in a pending legal proceeding demands a Claim to be submitted to arbitration, the party initiating the action will immediately dismiss the legal proceeding and file the claim in arbitration. Arbitration hearings will be held in a mutually agreeable location or if no such agreement can be reached, the city where the dispute occurred. A single arbitrator will be appointed by the AAA and shall be a practicing attorney or retired judge having experience with and knowledge of payroll and online commerce law. The arbitrator will follow the law and will give effect to any applicable statutes of limitation. The prevailing party shall be entitled to an award of the costs and expenses of the arbitration, including attorneys’ fees and expert witness fees. A judgment on the award may be entered by any court having jurisdiction. The parties agree and acknowledge that this agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act (Title 9 of the United States Code) shall govern the interpretation, enforcement, and proceedings pursuant to the arbitration clause in this Agreement.

JURY TRIAL WAIVER. CLIENT AND SERVICE BUREAU HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION BASED HEREON OR RELATING TO THE SERVICE OR ANY OTHER DISPUTE OR CONTROVERSY BETWEEN THE PARTIES. FURTHER, CLIENT AND SERVICE BUREAU HEREBY AGREE THAT ANY LITIGATION WILL PROCEED ON AN INDIVIDUAL BASIS AND WILL NOT PROCEED AS PART OF A CLASS ACTION.

 

12. ELECTRONIC SIGNATURE AGREEMENT.

 

By selecting the “I Accept” button, Client is agreeing to sign this Agreement electronically. Client agrees its electronic signature is the legal equivalent of its manual signature on this Agreement. By selecting “I Accept” Client consents to be legally bound by this Agreement’s terms and conditions. Client further agrees that its use of a key pad, mouse or other device to select an item, button, icon or similar act/action, or to otherwise provide us instructions electronically, or making any acceptance of any agreement, acknowledgement, consent terms, disclosures or conditions constitutes its signature (herein after referred to as “E-Signature”), acceptance and agreement as if actually signed by Client in writing. Client also agrees that no certification authority or other third party verification is necessary to validate its E-Signature and that the lack of such certification or third party verification will not in any way affect the enforceability of its E-Signature or any resulting contract between Client and us. Client also represent that it is authorized to enter into this Agreement.

 

13. GENERAL TERMS AND CONDITIONS.

 

A. Service Bureau, its employees and agents will hold in strict confidence all data furnished by Client or produced by Service Bureau under this Agreement; provided, however, that such parties will not be held liable if such data is released through other sources, or if Service Bureau, its employees and agents release the data because of a reasonable belief that Client has consented to such disclosure. Client acknowledges and agrees that to the extent Client was referred to Service Bureau by a third party, Service Bureau may disclose statistical information regarding the Client’s use of the Service to such third party and its affiliates for marketing and analysis purposes.

B. To assure that Client’s inquiries are handled promptly, courteously and accurately, Service Bureau may monitor and/or record telephone conversations and electronic communications between Client and Service Bureau without additional prior notification to Client or Client’s employees, and Client will so advise Client’s employees who communicate with Service Bureau by telephone or electronic means.

C. Client consents to and authorizes Service Bureau at any time to obtain credit reports about Client and to report adverse credit information about it to others, including the Internal Revenue Service and state taxing authorities. The individual whose social security number is designated below consents to and authorizes Service Bureau at any time to obtain credit reports on such individual for purposes of verifying identity and/or evaluating the creditworthiness of the such individual in connection with the Service and this Agreement.

D. In performing the Service, Client agrees that Service Bureau is not acting in a fiduciary capacity for Client or its benefit. In addition, neither use of the Service nor anything contained in this Agreement relieves Client of Client’s obligations under federal or state laws or regulations to retain records relating to the data contained in Service Bureau’s tape or disk files.

E. Client agrees to indemnify, defend and hold Service Bureau and its agents, contractors, services Service Bureaus and affiliates, including its and their respective directors, officers, employees, agents and contractors (each, an “Indemnified Party”), harmless against all liabilities, claims, demands, damages, losses, fines, judgments, disputes, costs, charges and expenses made by Client or others resulting from, arising out of or related to Service Bureau’s or any other Indemnified Party’s provision of the Service, reliance on information and data furnished by Client or resulting from activities that Service Bureau or any other Indemnified Party undertakes at Client’s request, or at the request of anyone Service Bureau or any other Indemnified Party believes in good faith to be an authorized agent of Client including, without limitation, costs, reasonable attorneys’ fees and expert witnesses’ fees incurred in connection with such claims. Service Bureau will have the right to disburse or withhold any sum which Service Bureau is authorized to disburse or withhold. Client agrees that neither Service Bureau nor any other Indemnified Party will be liable for any loss or damage caused by Service Bureau’s or any other Indemnified Party’s delay in furnishing services, products and/or equipment. Except as provided in Section 2 above, in no event will Service Bureau’s or any other Indemnified Party’s liability for any act or omission relating to the Service exceed the total charge for services provided for the six (6) month period immediately preceding such act or omission by the Service Bureau. IN NO EVENT WILL SERVICE BUREAU OR ANY OTHER INDEMNIFIED PARTY HAVE LIABILITY FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE OR INDIRECT LOSS OR DAMAGES REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER THEORY OR FORM OF ACTION OR WHETHER SERVICE BUREAU OR ANY OTHER INDEMNIFIED PARTY KNEW OR SHOULD HAVE KNOWN OF THE LIKELIHOOD OF SUCH DAMAGES IN ANY CIRCUMSTANCES. CLIENT ACKNOWLEDGES THAT NEITHER SERVICE BUREAU NOR ANY OTHER INDEMNIFIED PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE, THE SOFTWARE MATERIALS, THE ONLINE SERVICES, AND ANY EQUIPMENT OR SOFTWARE USED IN CONNECTION WITH THE SERVICE, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

F. This Agreement, the documents set forth in Section 1 or any user guides (online or otherwise) and any addendum to this Agreement (hereinafter called “Contract Documents”) constitute the entire agreement between Service Bureau and Client regarding the Service.

G. In the event of a dispute in connection with which either party to this Agreement employs counsel to pursue, protect or enforce any of the rights afforded that party by the terms hereof or by the terms of any related agreement or to defend against any claims of any other party hereto which arise out of this Agreement or any related agreement, in or out of court (including appellate courts), in arbitration, Bankruptcy cases and proceedings, or otherwise, the non- prevailing party in such dispute agrees to pay all attorneys’ fees, expert witnesses’ fees and costs actually incurred by the prevailing party in connection with such dispute and all such fees and costs actually incurred by the prevailing party in collecting or enforcing any settlement agreement, judgment, or arbitration award relating to such dispute. H. Any person identified by Client in this Agreement, via the Service Site or in any certification, notice or other communication delivered to Service Bureau may receive information, communications and notices regarding the Service, and is authorized to transact all business, make all agreements and sign and deliver all documents in connection with the Services. If the identity of such a person changes, Client will promptly notify Service Bureau in writing. Service Bureau will have a reasonable time after receipt of a certification, notice or other communication to act on it.

I. Service Bureau may at any time use agents and/or independent contractors (“Contractors”) to process Entries or provide all or any portion of the Service. Service Bureau will be responsible for the acts and omissions of its Contractors in the same manner as if Service Bureau had performed the portion of the Service itself and any claims against its Contractors or Service Bureau (with respect to the acts or omissions of its Contractors) shall be subject to the limitations of liability set forth in Sections 2 and 12E above to the same extent as if Service Bureau had performed the portion of the Service itself. However, Service Bureau will not be deemed to be the agent of, nor responsible for the acts or omissions of any other person, including, without limitation, any Federal Reserve Bank, ACH, Internet service provider or transmission or communications facility, any receiver or receiving depository financial institution (including, without limitation, the return of an Entry by such receiver or receiving depository financial institution), and no such person shall be deemed Service Bureau’s agent.

J. Client will, at its own cost and expense, obtain, install and, at all times during its utilization of the Service, maintain in good working order all software, hardware and other equipment necessary for it to perform in accordance with this Agreement. In the event of any failure of such software, hardware or other equipment, Client will deliver to Service Bureau all data which it would otherwise have provided that is necessary for Service Bureau to perform Service Bureau’s obligations in connection with the Services.

K. Sections 2, 3, 4, 5, 9(B), 9(F), 9(H), 9(I), 9(J), 11, 12(A, D, E, G, I, K, L, M, N, O, and P) will survive termination of the Service.

L. Governing Law. This Agreement shall be interpreted and construed in accordance with the laws of the State of Georgia, without regard to the conflicts of laws principles thereof.

M. Consent to Jurisdiction. Client irrevocably submits (for itself and in respect of its property) to the jurisdiction of any state or federal court sitting in Gwinnett County, Georgia, in any action or proceeding arising out of, or relating to, this Agreement and acknowledges and agrees that all claims in respect of the action or proceeding may be heard and determined in any such court. Client also agrees not to bring any action or proceeding arising out of, or relating to, this Agreement in any other court. Client waives any defense of inconvenient forum to the maintenance of any action or proceeding so brought.

N. Assignment. Client shall not assign this Agreement without the prior written consent of Service Bureau. The provisions of this Agreement shall inure to the benefit of, and be binding upon, the parties and their respective successors and permitted assigns. Service Bureau may assign this Agreement at any time in its sole discretion.

O. Electronic Transmission. This Agreement, and any amendments hereto, by whatever means accepted, shall be treated in all manner and respects as an original contract and shall be considered to have the same binding legal effect as if it were an original signed version thereof delivered in person. At the request of Service Bureau, Client shall execute or re-execute original forms of this Agreement and shall deliver them to Service Bureau. Neither party hereto shall argue that a contract was not formed hereunder based on either (i) the use of electronic means to deliver a signature or to indicate acceptance of this Agreement or (ii) the fact that any signature or acceptance of this Agreement was transmitted or communicated through electronic means; and each party forever waives any related defense.

P. Further Assurances. Client agrees to do such further acts and things, and to execute and deliver such additional documents agreements and instruments, as Service Bureau may at any time and from time to time request in connection with the administration of the Service and with the administration or enforcement of this Agreement. Client has caused this Agreement to be executed (by signature, electronic signature or by clicking to approve) on the date written below by a principal of Client, which by execution hereof (whether by signature, electronic signature, or by clicking to approve), such person represents that he or she is a principal of Client and has the authority to execute this Agreement on behalf of Client and bind Client to this Agreement.

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