Effective Date: These Terms of Use became effective on 25 September 2024
These Software as a Service Terms and Conditions (“Agreement”) are entered into between the person or entity identified in the applicable Order Form, (“you”, “your” or “Client”) and Workforce.com Inc. (“Workforce.com”), and governs Client’s acquisition and use of the Services.
Client accepts this Agreement by: (a) clicking a box to execute an Order Form through our online sign-up process, or (b) directly executing an Order Form that references this Agreement, or (c) using free Services. If you are accepting this Agreement on behalf of a company or other legal entity, then you represent and warrant that you have the authority to bind such entity and its affiliates to this Agreement. If Client registers for a free trial of the Services, or the Services are otherwise made available to Client without charge, then all applicable provisions of this Agreement will also govern that free trial, freemium and those free Services.
Workforce.com may periodically update this Agreement, and, when updated, a revised copy will be posted on the Workforce.com website. If the updates are material, then we may also directly notify you of the same. Your continued use of the Services after any such update shall constitute your assent to and acceptance of the updated Agreement in its entirety, and the revised Agreement shall govern your use of the Services thereafter.
This Agreement is effective between Workforce.com and Client as of the date of Client’s acceptance of this Agreement (the “Effective Date”). The parties agree as follows:
Terms used in this Agreement with their initial letters capitalized have the meanings ascribed to them in this section or where they are elsewhere defined in this Agreement. Any term defined in the singular will have the corresponding definition in the plural (and vice versa). As used in this Agreement:
(a) Agreement means any Master Service Agreement executed by the parties together with these Software as a Service Terms and Conditions, the applicable Order Form(s), and all exhibits, schedules, or policies incorporated herein by reference.
(b) Biometric Data means a subset of Personal Information which uses unique physical characteristics, body measurements and/or calculations based on the same, to identify a natural person.
(c) Confidential Information means any non-public information which is disclosed in any form, whether before or after the Effective Date, by a party and which: (i) is designated as confidential by the disclosing party at the time of its disclosure; (ii) a reasonable person knows or ought to know is confidential under the circumstance of disclosure; or (iii) is information concerning the business, assets, liabilities, financial position, customers, pricing policies, marketing strategies or proposed business plans of the disclosing party. Confidential Information does not include information that: (1) is now, or hereafter becomes, through no act or failure to act on the part of the receiving party, generally known or available to the public; (2) is lawfully disclosed to the receiving party by a third party not under an obligation of confidentiality to the disclosing party; or (3) is independently developed by the receiving party without unauthorized use of or reference to any Confidential Information of the disclosing party.
(d) Client Data means any data supplied, entered or uploaded by Client or any End User(s) for use by and with the Software or Services.
(e) Documentation means the then-current written materials which may be provided from time to time by Workforce.com relating to the features, functions and use of the Services.
(f) End User means (i) Client’s employees; and (ii) any other third party(s) authorized by Client to access the Software and who are, in each case registered in the database with ability to create a unique user identification and a unique password.
(g) Fees means the fees charged by Workforce.com for the rights granted to Client in and to the Services, as more fully set forth in the applicable Order Form.
(h) Initial Term means the period of time Workforce.com will provide the Services to Client, as set forth in the initial Order Form, subject to renewal in accordance with Section 3 herein below.
(i) Intellectual Property Rights means all inventions, patents, copyrights, copyrightable works (including computer programs), trade secrets, trade names, know-how, intellectual property, software, shop rights, moral rights, licenses, developments, rights in data and databases (including research data), designs, processes, formulas, and other intangible proprietary or property rights, whether or not patentable (or otherwise subject to legally enforceable restrictions or protections against unauthorized third party usage), and any and all applications for, and extensions, divisions, and reissuances of, any of the foregoing, and rights therein, and whether arising by statute or common law.
(j) Order Form means any Workforce.com generated Services order duly executed by Workforce.com and Client detailing, among other things, the Services subscribed for, the Initial Term and the Access Fee and payment terms.
(k) Personal Information means information which can be used, directly or indirectly, to identify a natural person.
(l) Services means the access provided to Client to the Software provided by Workforce.com.
(m) Software means the online, internet-based software provided by Workforce.com, as may be updated from time to time by Workforce.com, and as more fully described in the applicable Order Form.
(n) Workforce.com Web Portal means the Client portal for use of the Services which is accessible via the website .
2.1 Grant
(a) Upon payment of the Fee, Workforce.com grants to Client a non-exclusive, non-transferable, non-assignable, non-sub-licensable, time limited right and license to use the Services and related Documentation for its internal business purposes in accordance with the terms of the Agreement.
(b) The Services are made available to Client by Workforce.com setting up an account for the Services and providing Client with login information via the Workforce.com Web Portal and mobile application.
(c) Client shall ensure that it and any End User(s) accesses and uses the Services in accordance with the terms of this Agreement. Client acknowledges and agrees that it determines who is an End User and what level of access, if any, each of its End Users have. Client shall be liable for the use of the Services by its End Users.
2.2 Payroll Terms
If Client has elected to receive Workforce.com’s Payroll Service under any applicable Order Form, the supplemental Payroll Terms set forth in Exhibit A are hereby incorporated into and made a part of this Agreement.
2.3 Restrictions and Audit Rights
(a) Client shall not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms of the Services or Documentation; (ii) modify, translate, or create derivative works based on the Services (except to the extent expressly permitted by Workforce.com); (iii) rent, lease, lend, distribute, assign, sell or otherwise transfer the Services; (iv) remove any proprietary notices or labels; or (v) challenge the validity of any Workforce.com Intellectual Property Rights.
(b) Workforce.com may modify or update the Services during the Term in its discretion, provided that any modification or update which results in any discontinuation of material functionality shall occur only upon at least ninety (90) days prior notice to Client. Workforce.com shall provide Client with any and all training on updates to the Services free of charge.
(c) During the Term of this Agreement, Workforce.com (itself or through a third-party auditor retained by Workforce.com) may audit the records and systems of Client to ensure compliance with the terms of this Agreement and each applicable Order Form. Workforce.com will notify Client in writing at least ten (10) business days prior to any such audit. Any such audit will be conducted during regular business hours and will not interfere unreasonably with Client’s business activities. In the event that an audit reveals that Client is using the Services beyond the scope of the license granted in this Agreement, Client shall be responsible for the cost of such audit and Workforce.com shall invoice Client for such additional Fees at the list price then in-effect for such Services, plus five percent (5%).
3.1 Subject to earlier termination as provided below, the Initial Term of this Agreement is as specified in the Order Form, and shall be automatically renewed for consecutive periods equal to the Initial Term (individually a “Renewal Term” and collectively with the Initial Term, the “Term”); provided that either party may terminate this Agreement prior to any Renewal Term as follows:
(a) for monthly subscriptions, upon at least thirty (30) days’ prior written notice to the other party of its intention not to renew; or
(b) for annual subscriptions, upon at least ninety (90) days’ prior written notice to the other party of its intention not to renew.
3.2 Either party may terminate this Agreement immediately by written notice upon the occurrence of one of the following events:
(a) if the other party is in breach of this Agreement and has failed to remedy the breach within thirty (30) days of a written notice to it from the non-breaching party; or
(b) if the other party becomes insolvent, acknowledges insolvency in any manner, ceases to do business, makes an assignment for the benefit of its creditors, or files a petition in bankruptcy.
3.3 Upon termination or expiration of this Agreement:
(a) all rights granted to Client hereunder will immediately terminate and Workforce.com may disable Client’s and its Users’ access to the Services;
(b) all monies owing under the Agreement shall become immediately payable and due;
(c) if requested in writing, Workforce.com will make available to Client in the format of a CSV export, a copy of all Client Data then held by Workforce.com, along with a copy of the data mapping; and
(d) each party must immediately return or (if requested to do so by the other party) destroy all Confidential Information of the other party in that party’s possession or control.
3.4 In addition to the termination rights set forth herein, Workforce.com may suspend any or all Services in case of:
(a) any outstanding invoice not being paid within thirty (30) days from the invoice due date;
(b) Workforce.com becoming aware of what it deems a credible claim that Client’s use of the Services violates any applicable law, rule or regulation, or infringes upon third party rights;
(c) Client’s use of the Services in violation of this Agreement, or in a manner that interferes with the provision of the Services; or
(d) in any event where Workforce.com is entitled to terminate this Agreement for cause. In the event of any suspension of the Services, Client will remain liable for portions of the Fee that would have been paid had the Services not been suspended.
4.1 Availability
(a) Workforce.com will use commercially reasonable efforts to provide the Services in accordance with the service levels set forth in the Service Level Agreement (“SLA”), located at . The SLA, sets out the remedies for loss of access or functionality (the "Service Credits"). Except as expressly provided elsewhere in this Agreement, the Service Credits are Client's exclusive remedy and Workforce.com's sole liability for any service level defect in and to the Services.
(b) The Services may be temporarily unavailable for scheduled, or unscheduled emergency, maintenance. In any event, Workforce.com shall use reasonable efforts to provide advance notice (email sufficient) of any scheduled service disruption or emergency maintenance.
5.1 Mutual
Each party represents and warrants that: (a) it has full right, power, and authority to enter into this Agreement, to perform its obligations and duties under this Agreement, to be bound by the terms contained herein, and to grant the licenses granted by it in this Agreement; and (b) its execution, delivery, and performance of this Agreement does not and will not conflict with, violate, or result in a breach of any other agreement, judgment, order, stipulation, or decree by which such party is bound.
5.2 Workforce.com
Workforce.com warrants that it will provide the Services with commercially reasonable care and skill, in accordance with the applicable Documentation. The sole obligation of Workforce.com with respect to a breach of the foregoing warranties shall be, using commercially reasonable efforts, to repair or replace the Services.
5.3 Client
Client warrants that its receipt and use of the Services (including as pertains to Personal Information) will be in compliance with all applicable laws, rules and regulations (including privacy laws). Client further represents and warrants that Client owns or otherwise has and will have the necessary rights and consents in and relating to the Client Data so that, as received by Workforce.com and processed in accordance with this Agreement, such data and material do not and will not infringe, misappropriate or otherwise violate any intellectual property rights or any other rights of any person or violate any applicable law.
5.4 Disclaimer
To the maximum extent permitted by law and except as expressly provided in this Agreement, the Services are provided “as is” and “as available”, with all faults and without warranty of any kind. Except as expressly provided in this Agreement, Workforce.com makes no warranties or representations to Client with respect to the Services or otherwise in connection with this Agreement, whether oral or written, express, implied or statutory. Without limiting the foregoing, any implied warranty or condition of merchantability, and the implied warranty or condition of fitness for a particular purpose, are expressly excluded and disclaimed.
6.1 Payment of Fees
Client will pay Workforce.com the Fees, adjusted by the Annual Fee Adjustment (as defined below) in accordance with the terms and on the schedule set forth herein. Upon any Renewal Term, Workforce.com shall not increase Fees for the applicable Order Form over the previous Term more than the greater of: (a) three-and-a-half percent (3.5%); or (b) the last recorded annual percentage change in the Consumer Price Index for All Urban Consumers (CPI-U) as published by the United States Department of Labor’s Bureau of Labor Statistics (the “Annual Fee Adjustment”). Workforce.com will invoice Client for Fees and other charges due hereunder to Client's address specified in this Agreement and such invoices are due thirty (30) days from the date of invoice. Other than as expressly provided herein, all Fees are firm and no refunds or credits will be made if Client does not use part of the Services or wishes to stop using the Services during the Term. Client shall pay Workforce.com at least the minimum monthly Fees in accordance with Minimum User Commitment set forth in the applicable Order Form. Client acknowledges and agrees that Workforce.com may charge to Client’s ACH or other payment mechanism provided by Client above and approved by Workforce.com, all amounts due and owing, including taxes and service fees, or any other fee or charge associated with Client’s account. Payments more than thirty (30) days overdue are subject to interest of 1.5% per month on any overdue amounts, or the maximum permitted by law, whichever is less.
6.2 Taxes
All amounts payable by Client to Workforce.com under this Agreement are exclusive of any tax, tariff, levy or duty that may be assessed by any jurisdiction in connection with the Services. When Workforce.com has the legal obligation to collect such tax, tariffs, levies or duties, the amount of the same will be invoiced to Client and Client will pay such amount unless Client provides Workforce.com with a valid tax exemption certificate. If, under the laws of any applicable jurisdiction, Client is required to withhold any tax on any payments, then the amount of the payment will be automatically increased to totally offset such tax, so that the amount actually remitted to Workforce.com, net of all taxes, equals the amount invoiced or otherwise due. In such event Client will promptly furnish Workforce.com with the official receipt of payment of these taxes to the appropriate taxing authority. If such documentation is held invalid for any reason, Client agrees to reimburse Workforce.com for any tax or fee liability including without limitation related interest and penalties arising from such invalid documentation. Client will pay all other taxes, levies or similar governmental charges or provide Workforce.com with a certificate of exemption acceptable to the taxing authority.
Client will:
(a) provide Workforce.com with Client Data, database structure and API details necessary for Workforce.com to integrate the Software within Client's operating environment and to enable Client to access and use the Software;
(b) provide Workforce.com with all information and co-operation necessary to enable Workforce.com to perform the Services and comply with its obligations under this Agreement, including without limitation access to Client’s payroll systems;
(c) take reasonable steps to ensure that all End Users: (i) are suitably trained on how to use the Software, contingent on Workforce.com providing the initial training to Client; and (ii) employ and implement the correct use of the Software in accordance with any Documentation provided by Workforce.com under this Agreement;
(d) promptly notify Workforce.com of any event or incident that is likely to or will impact on access and use of the Software, the provision of the Services or any other obligation of Workforce.com; and
(e) comply with Workforce.com’s reasonable directions in relation to the use of the Software and Services.
8.1 Workforce.com will defend, indemnify and hold Client harmless from and against any loss, cost and expense that may finally be awarded to the extent arising from a third party claim against Client that the Services infringe or misappropriate any third party Intellectual Property Rights; provided that Client (a) promptly notifies Workforce.com of any such claim; (b) grants Workforce.com sole control of the defense of any such claim and of all negotiations for its settlement or compromise (provided that no such settlement or compromise results in payment of money by Client or an admission of guilt by Client absent Client’s written consent to the same); and (c) provides Workforce.com with all reasonable assistance to perform Workforce.com’s obligations under this paragraph.
8.2 Workforce.com will not have any liability hereunder to the extent the claim arises from (a) any modification of the Software or Services by, on behalf of, or at the request of Client; or (b) the use or combination of the Software or Services with any computer, computer platform, operating system and/or database management system other than provided by Workforce.com (“Combination Use”).
8.3 If any Software or Services are, or in Workforce.com’s opinion are likely to become, the subject of an Intellectual Property Rights infringement claim, then Workforce.com, at its sole option and expense, will either: (a) obtain for Client the right to continue using the Software and Services under the terms of this Agreement; (b) replace the Software and Services with products that are substantially equivalent in function; (c) modify the Software and Services so that they are non-infringing and substantially equivalent in function; or (d) refund to Client the unused Fees, if any, paid to Workforce.com for the Software and Services giving rise to the infringement claim, and require Client to cease use of such Software and Services.
8.4 THE FOREGOING SETS FORTH Workforce.com’s EXCLUSIVE OBLIGATION AND LIABILITY WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
8.5 Client will indemnify, defend and hold harmless Workforce.com, its affiliates, and each of its respective members, officers, directors, employees, shareholders, agents, and representatives against any loss, cost and expense to the extent arising from a third party claim arising from or related to (a) allegations that the Client Data violates any applicable law, rule or regulation or infringe or misappropriate any third party’s copyright, patent, trademark, trade secret, privacy or other proprietary rights; or (b) any breach of its obligations under Section 11 (Privacy Law and Security Standards).
9.1 As between the parties, Workforce.com owns all Intellectual Property Rights associated with the Services, including all such rights in the Software and Documentation provided as part of or in connection with the Services. Client shall preserve intact all applicable Workforce.com copyright, patent and/or trademark notices presented in connection with the Services. Workforce.com reserves all Intellectual Property Rights that are not expressly granted to Client under this Agreement, and Client will not assert any implied rights in or to any of Workforce.com’s Intellectual Property Rights. All Intellectual Property Rights to any improvements, enhancements or modifications to the Services, including but not limited to, all information, data, and other content that is derived by or through the Services from processing the Client Data (the “Resultant Data”), which shall be anonymized so that it does not personally identify or disclose Personal Information of the Client or the source of the underlying Client Data, and any software, applications, inventions or other technology developed in connection with the Services or Software, shall vest in Workforce.com.
9.2 Client shall retain ownership of all Client Data. Client hereby authorizes Workforce.com to access Client’s account and to use, collect, process, modify and analyze Client Data in connection with the provision of the Services and Software, including any related systems and technologies, and to use such Client Data as necessary to create Resultant Data.
10.1 Each party will hold the other party’s Confidential Information in confidence using the same degree of care that it uses to protect its own Confidential Information, but no less than reasonable care, and except as expressly allowed for the purpose of its performance under this Agreement (but only to the employees of the receiving party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the receiving party’s duty hereunder), the receiving party shall not use or divulge to any third person any Confidential Information.
10.2 Neither party shall be obligated to hold Confidential Information in confidence if required to be disclosed by law, provided that the disclosing party is given prior written notice (unless prohibited by law) and a reasonable opportunity to prevent such disclosure and, if disclosed, the Confidential Information will be used only for the specified legal purpose.
10.3 Each party shall return to the other party any Confidential Information supplied by the other party in connection with this Agreement within thirty (30) days of written request for the same. Each party agrees that confidentiality obligations under this Section shall continue for a period of one (1) year from the termination or expiration of this Agreement.
11.1 Each party agrees to comply with all applicable laws in relation to any and all Personal Information that it accesses, collects or uses in connection with this Agreement. Any Personal Information submitted by or on behalf of Client (including any End Users) will further be subject to the Workforce.com Privacy Policy.
11.2 In those jurisdictions that require consent of the individual to access, collect, store or use Biometric Data, Client shall not collect, otherwise obtain, or provide to Workforce.com, any Biometric Data without prior consent of the individual in strict accordance with applicable law. To the extent applicable, Workforce.com will use Biometric Data solely for the purposes set forth in this Agreement or an applicable Order Form, and will not further disclose nor sell, lease, trade or otherwise profit from any Biometric Data provided by Client.
11.3 Client shall at all times be responsible to ensure that industry standard cyber security measures are in place in order to keep the Client Data free from malicious code, including viruses, Trojan horses and other software or code that could cause damage to the Services.
EXCEPT FOR LIABILITY RELATED TO BREACHES OF A PARTY'S CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR PROFIT, LOSS ARISING FROM OR ATTRIBUTABLE TO FAILURE TO REALIZE ANTICIPATED SAVINGS, OR LOSS OF PRODUCTION AND EQUIPMENT) UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, EVEN IF SUCH PARTY KNEW OR HAD BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. EXCEPT WITH RESPECT TO INTELLECTUAL PROPERTY INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, WORKFORCE.COM (DEFINED FOR PURPOSES OF THIS SECTION AS WORKFORCE.COM’S PARENT, AFFILIATES, SUBSIDIARIES AND THEIR RESPECTIVE OFFICERS, DIRECTORS AND EMPLOYEES) SHALL NOT BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY AMOUNT OVER THE FEES PAID BY CLIENT FOR USE OF THE SERVICES UNDER THE APPLICABLE ORDER FORM DURING THE 6 MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM GIVING RISE TO SUCH LIABILITY. THE LIMITATION PROVISIONS OF THIS SECTION SHALL BE APPLICABLE TO ANY CLAIM FILED BY CLIENT ARISING OUT OF OR RELATING TO ANY SEPARATELY LICENSED SOFTWARE THAT MAY BE USED WITH THE SERVICES. CLIENT MUST, IN ORDER TO PRESERVE ITS RIGHT TO COMPENSATION, GIVE NOTICE OF ANY CLAIM WITHIN 3 MONTHS FROM WHEN CLIENT BECAME AWARE OF THE BASIS FOR THE CLAIM. THIS SECTION WILL SURVIVE TERMINATION OR EXPIRATION OF THIS AGREEMENT.
Workforce.com may use Client’s logo, marks, and name on the Workforce.com website and other promotional materials. Workforce.com will follow any Client guidelines if supplied to Workforce.com prior to the use of such materials.
Any notice or other communication to or by any party must be in writing and in the English language, addressed to the other party at its address set out in the applicable Order Form. Unless otherwise agreed herein, all notices must be sent by email, with a copy sent at the same time by a nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a notice is effective only (a) on receipt by the receiving party, and (b) if the party giving the notice has complied with the requirements of this Section.
15.1 Informal Preliminary Dispute Resolution
Each party agrees that any dispute between the parties relating to this Agreement will first be submitted in writing to a panel of two senior executives of each party, who will promptly meet and confer (telephone communications sufficient) in an effort to resolve such dispute through good faith consultation and negotiation. Each party’s executives shall be identified by notice to the other party, and may be changed at any time thereafter also by notice to the other. Any decisions of the executives will be final and binding on the parties. In the event the executives are unable to resolve any dispute within thirty (30) days after submission to them, either party may then commence proceedings as provided herein.
15.2 Arbitration
For any disputes unable to be resolved by informal dispute resolution as provided for herein above, the parties agree to submit any and all claims, demands, disputes, controversies, differences or misunderstandings arising out of or relating to this Agreement, or the failure or refusal to perform the whole or any part hereof, to arbitration conducted in accordance with the International Arbitration Rules of the American Arbitration Association (“AAA”), except where those rules conflict with this provision, in which case this provision controls. The arbitration shall be conducted by three arbitrators, one to be selected by each party and the two party-appointed arbitrators to agree upon the third. For any disputes for an amount of $50,000 or less, the arbitration shall be held virtually. For disputes where the amount in question is greater than $50,000, the arbitration shall be held in Chicago, Illinois, U.S.A. Absent agreement of the parties, or an order by the arbitrator(s) based upon compelling evidence of need, there shall be no discovery in the arbitration.
15.3 Injunctive Relief
Notwithstanding any of the foregoing, nothing in this Agreement shall prevent either party seeking temporary or permanent injunctive relief where such relief may be appropriate, including but not limited to threatened or actual infringement of Intellectual Property Rights or to protect Confidential Information.
15.4 Prevailing Party
The prevailing party in any action brought by one party against the other party to enforce the terms of this Agreement or any rights or obligations hereunder, shall be entitled to receive, in addition to such other relief as the tribunal may award, its reasonable costs and expenses, including without limitation all attorneys’ fees, expert witness fees, litigation-related expenses and arbitrator and court or other costs incurred in such proceeding or otherwise in connection with bringing such arbitration, suit, or action. For purposes of this Agreement, a party is “prevailing” if that party prevails on the central issue raised in the action or claim. A party may prevail by judgment or decision in that party’s favor, consent decree, settlement agreement or voluntary dismissal with or without prejudice.
15.5 Obligations Continue
Despite the existence of a dispute, excluding areas of injunctive relief, each party will at all times continue to fulfil all obligations under this Agreement.
16.1 Governing Law
For Client’s located in the United States, this Agreement will be governed by and construed in accordance with the laws of the State of Illinois, excluding its conflict of law provisions. For Client’s located in the United Kingdom, this Agreement will be governed by and construed in accordance with the laws of England, excluding any conflict of law provisions. The parties agree that the U.N. Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Should a party commence any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement, such action may be brought only in a court of competent jurisdiction in Cook County, Illinois.
16.2 Assignment
Neither party may assign this Agreement, without the written consent of the non-assigning party. Notwithstanding the foregoing, either party may assign this Agreement to a successor (whether by merger, a sale of all or a significant portion of its assets, a sale of a controlling interest of its capital stock, or otherwise) which agrees in writing to assume the party’s obligations under this Agreement. Workforce.com may, without consent of the Client, transfer the right to receive payment in accordance with this Agreement.
16.3 Third-Party Links and Content
The Services may offer links to, or functionality with, certain third-party products or services. No such third-party products or services are under our control, and they are made available only as a convenience for you. Such availability does not mean we endorse, support or make any warranty with respect to such third-party products. Any use of the same is at your sole risk and Workforce.com expressly disclaims any warrant as to their effectiveness or usability.
16.4 Apple iOS User Terms
Notwithstanding any other provision of this Agreements, the following additional terms are applicable to those using any Workforce.com Services on an Apple iOS device: You understand that the terms of this Agreement are between you and Workforce.com only and not Apple, Inc. (“Apple”) and that Workforce.com (or the third party developer that may own and operate the applicable Services) is responsible for the Services and the content thereof, but that Apple and its subsidiaries are third-party beneficiaries of this Agreement and have the right to enforce them against you. You understand that, should the Services fail to conform to any applicable warranty not disclaimed above, you may notify Apple and Apple will refund the purchase price (if any), but that Apple has no maintenance, support, or (to the maximum extent permitted by applicable law) other warranty obligations to you with regard to the Services. Apple is not responsible for any product liability claims or claims that the Services or your use thereof fails to conform to any applicable legal or regulatory requirement or infringes a third party’s intellectual property rights. If you have any questions or concerns regarding the Services, please contact Workforce.com as described below.
16.5 Survival
Any section that must survive in order to give force to its intended effect shall survive the expiration or termination of this Agreement, including, without limitation, this Section, a party’s payment obligations, and Sections 8 (Indemnity), 10 (Confidential Information), 12 (Limitation of Liability), and 15 (Dispute Resolution).
16.6 Severability
If a provision of this Agreement is illegal, invalid, unenforceable or void in a jurisdiction it is severed for that jurisdiction and the remainder of this Agreement has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected.
16.7 Waiver
A party’s waiver of a right under or relating to this Agreement, whether prospectively or retrospectively, is not effective unless it is in writing and signed by that party. No other act, omission or delay by a party will constitute a waiver of a right.
16.8 Counterparts
This Agreement may be executed in any number of counterparts, each of which will be considered an original but all of which will constitute one and the same instrument.
16.9 Force Majeure
Except for the obligation to make payments when due, in no event will either party be liable or responsible to the other party, or be deemed to be in breach of this Agreement, to the extent a failure or delay is caused by any circumstances beyond such party’s reasonable control, including without limitation, acts of God, flood, fire, earthquake or explosion, war, terrorism, riot or other civil unrest, embargoes, strikes, or any action taken by a governmental authority or failure of adequate power or telecommunications.
16.10 Entire Agreement
This Agreement is the entire agreement and understanding between the parties relating to the subject matter of this Agreement, and supersedes any prior agreement, representation (written or oral) or understanding on anything connected with that subject matter. Any additional or different terms provided in any purchase order will not become part of this Agreement and will not be binding upon either party.Exhibit A – Payroll Terms
Pursuant to Section 2.2 of the Agreement, these Workforce.com Payroll Terms (collectively with the Agreement referred to in this Exhibit A as, the “Payroll Agreement”), set forth additional terms and conditions under which Workforce.com agrees to provide to you certain payroll services and other related services (the “Payroll Service”) through its web-based platform my.workforce.com, its mobile applications, including those accessed through an employer’s mobile device, and any other platforms or services that post a link to or include this Payroll Agreement (collectively, the “Platform”). Capitalized terms used but not otherwise defined in these Payroll Terms have the meanings ascribed to such terms in the Agreement.
You are encouraged to read the Payroll Agreement carefully and to save a copy of it for your records. The Payroll Agreement is an ACH Agreement under the NACHA Rules (as defined below) and as an Originator you agree to be bound by the NACHA Rules.
Provided that you meet your payment obligations as are set forth in an Order Form, and comply with the terms of the Payroll Agreement, then as long as you are subscribed to the Payroll Service, Workforce.com will provide you with the Payroll Service for the purposes of: (a) calculating payroll and its associated liabilities for your business; (b) processing payroll and making related payroll payments; (c) making certain payroll tax payments and payroll tax filings electronically; and (d) if applicable, sending wage garnishments, such as child support payments, to applicable local, state, or federal agencies. In performing the Payroll Service, including for each of the foregoing purposes, Workforce.com is entitled to and will rely on the information furnished by you and in no event is Workforce.com responsible or liable for any errors resulting from such reliance, as further set forth in the Agreement. You may not use the Payroll Service on a professional basis for anyone other than you, unless expressly agreed in writing by Workforce.com.
Depending on the type of Payroll Service you request, you may need to agree to additional terms and conditions and complete and sign additional forms or authorizations that Workforce.com provides to you, as required by law or as otherwise necessary to provide the Payroll Service. Certain features or functionality of the Payroll Service may be subject to a minimum employee count or minimum fee requirement. If Client does not meet the minimum requirement for the applicable Payroll Service, Workforce.com may assess a minimum fee for such monthly period. All Fees are non-refundable. Workforce.com has the right to change the Fees and any other charges contemplated under this Payroll Agreement from time to time upon no less than thirty (30) days’ prior notice to Client and Client's continued use of the Service constitutes Client’s agreement to any such change. Unless otherwise stated herein or agreed to in writing, Client authorizes Workforce.com to, and Workforce.com shall, debit Client's Bank Account for the Fees and all other charges.
Prior to your initial payroll processing date, you must submit the completed and executed documents Workforce.com requires for providing the Payroll Service, including your payroll information, your designated bank account (“Bank Account”) information, authorisation for direct debits and credits from the Bank Account, any required federal, state, or local powers of attorney, and any additional information requested by Workforce.com. The Payroll Service provided will be based on and is dependent upon information provided to Workforce.com by you (including proof of federal, state, and local tax identification numbers). Failure to provide the required documents may adversely impact our ability to perform the Payroll Service. You are also responsible for: (i) depositing any federal, state, and local withholding liabilities incurred prior to enrolling in the Payroll Service; (ii) submitting any payroll returns to tax agencies (state, federal, and/or local) that were due for payroll tax liabilities incurred prior to enrolling in the Payroll Service; and (iii) canceling any prior payroll service or services of professional employee organizations/employee leasing companies.
You acknowledge and agree that: (x) Workforce is not acting in a fiduciary capacity for you and/or your business; (y) using the Payroll Service does not relieve you of your obligations under local, state, or federal laws or regulations to retain records relating to your data contained in Workforce.com’s files; and (z) any information that Workforce.com provides in connection with the Payroll Service is for informational purposes only and should not be construed by you as legal, tax, regulatory, financial, benefits or accounting advice.
You agree that you have a duty to notify Workforce.com of third-party notices, such as Internal Revenue Service (“IRS”) penalty notices, which could affect our ability to effectively provide the Payroll Service or which could increase the likelihood that a Claim (as defined below) is brought against you or Workforce in connection with the Payroll Service. “Claim” includes any claims, disputes, demands, liabilities, damages, losses, costs, judgements, penalties, fines, and expenses (including, without limitation, reasonable legal, accounting, and other fees).
You shall approve and submit the Payroll Information (as defined below), thereby authorizing Workforce.com or its agents to create and transmit credit or debit entries (the “Entries”) necessary to process your payroll and payroll tax transactions.
Workforce.com will notify you via electronic communication or by other means when all information necessary to begin the Payroll Service has been received and the enrollment process for the Payroll Service has been completed. You shall then, prior to submitting your first payroll, review the Payroll Information for completeness and accuracy. For the purposes of the Payroll Agreement, “Payroll Information” shall mean any information provided to Workforce.com in connection with the Payroll Service, including but not limited to information provided by you, your employees, or your independent contractors, and all information posted in connection with the Payroll Service for your review on the Platform or otherwise requested for review by Workforce.com, such as the information used to calculate and pay employee payroll, track your defined employee benefits, pay payroll taxes to applicable taxing agencies (including your employer identification number(s), unemployment insurance tax rates, and employment tax deposit schedule), produce payroll tax returns and W-2 statements, and print checks on your Account (if applicable). You must correct or provide, respectively, any incorrect or missing Payroll Information, either through the Platform or by notifying Workforce.com in the manner specified in the applicable electronic communication received by you and within the time period specified therein. You are fully responsible for the accuracy of all information you provide, submit, and/or approve (whether provided directly or through your representatives), and you are solely responsible for any Claims, including but not limited to IRS penalties and/or interest, and other penalties and/or interest arising from the failure to timely provide and maintain accurate and complete Payroll Information at all times.
You agree that by submitting each payroll (including the first payroll) you: (a) approve all Payroll Information; (b) represent and warrant to Workforce.com that no Payroll Information will result in Entries that would violate U.S. law, the sanctions program of the Office of Foreign Assets Control of the U.S. Department of the Treasury or any other applicable laws, rules, or regulations; (c) waive and release any Claim against Workforce.com arising out of any errors or omissions in the Payroll Information which you have not corrected (whether directly or through your representatives) or have not requested Workforce.com to correct; and (d) acknowledge that any subsequent request for corrections will be considered special handling, and additional fees may be charged. Final responsibility for any audits or assessments rests with you. Workforce.com will not have any responsibility for verifying the accuracy of any data you provide via the Platform or via any other method.
You acknowledge, agree, and understand that: (i) any information or instructions (including but not limited to Payroll Information and Entries) communicated to Workforce.com by you or your representative (or anyone that Workforce.com reasonably believes to be you or your representative) will be deemed fully authorized by you, and you shall be fully responsible for the accuracy of such information and instructions, and any Claims, including but not limited to any IRS penalties and/or interest or other penalties and/or interest arising therefrom; and (ii) notwithstanding such deemed authorization, Workforce.com may in its sole discretion refuse to accept or act upon any such instructions.
We will use reasonable efforts to verify that anyone providing an instruction to approve, release, cancel, or amend the Payroll Information used to create Entries (each, a “Payment Order”) is either you or your representative. Workforce.com does not verify or review Payment Orders for the purpose of detecting any errors; it is your responsibility to verify the accuracy of Payment Orders. You will be bound by any Payment Order that is received by Workforce.com in compliance with this designated authorization procedure, and in addition to any other terms and conditions set forth anywhere in the Agreement, you shall indemnify and hold the Workforce.com Parties harmless from and against any Claims arising from the execution of a Payment Order in accordance with this Payroll Agreement.
If a Payment Order describes the payee inconsistently by name and account number, (a) payment may be made on the basis of the account number even if you identify a person different from the named payee; or (b) Workforce.com 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 payee or the payee’s account, Workforce may, in its sole discretion, refuse to accept or may return the Payment Order.
On or prior to your payroll direct deposit and/or payroll tax deposit date or other applicable settlement or due date, you authorize Workforce.com to initiate debit Entries to the Bank Account at the depository financial institution indicated by the routing number associated with the Bank Account that you provide to Workforce.com (the “Bank”), and to debit the Bank Account in such amounts as are necessary to: (a) fund your direct deposits; (b) pay any fees or charges associated with the Payroll Service, including, without limitation, finance charges; (c) pay your payroll taxes; (d) pay any debit, correcting, or reversing Entry initiated pursuant to the Payroll Agreement which is later returned to Workforce; (e) verify the Bank Account through a test deposit or debit authorization; and (f) pay any other amount that is owing under the Payroll Agreement or in connection with the Payroll Service. You also authorize Workforce.com or its agents to initiate credit Entries to the Bank Account in the event that Workforce.com is required to return Unpaid Funds to you, as described in Section 12 of these Payroll Terms. These authorizations are to remain in full force and effect until Workforce.com has received written notice from you of termination of any such authorizations in such time and such manner as to afford Workforce.com and the Bank a reasonable opportunity to act upon such notice. Workforce.com is not responsible for determining whether the bank accounts of any payors or payees have deposit or withdrawal restrictions.
You acknowledge that the origination of Automated Clearing House (“ACH”) transactions to the Payroll Account (as defined below) and the transmission of funds via ACH transactions to the payee’s account must comply with U.S. law and other applicable laws, rules, and regulations, including the National Automated Clearing House Association Operating Rules, as they may be amended from time to time (as amended, the “NACHA Rules”) and Article 4A of the Uniform Commercial Code, as adopted in Delaware and as may be amended from time to time (as amended, the “UCC”).
You will maintain in the Bank Account, as of the applicable payroll direct deposit date, payroll tax deposit date, or other settlement or due date and time, immediately available funds sufficient to cover all disbursements, fees, payroll taxes or any other amounts due (collectively, the “Amounts Due”) under the Payroll Agreement. Your obligation to have sufficient funds in the Bank Account to cover the Amounts Due matures at the time Workforce.com originates the applicable Entries for the Amounts Due and is unaffected by termination of the Payroll Service. Workforce may set off any amounts you owe to it against any amounts it owes to you in order to obtain payment of your obligations as set forth herein.
If you do not have sufficient funds in the Bank Account to pay the Amounts Due at the time required, or if you refuse to pay the Amounts Due, then Workforce.com will not be able to pay out the Amounts Due to the applicable parties and will not be liable for any consequences or Claims directly or indirectly arising from such failure to pay, and may further: (a) debit the Bank Account or any other account owned in whole or in part by you to pay disbursements, fees or charges, payroll taxes, or other amounts due; (b) refuse to pay any unremitted payroll taxes to the applicable tax agencies, in which case the payroll tax liability will become your sole responsibility; (c) refuse to perform further Services; and/or (d) immediately terminate the Payroll Agreement. For any amounts due and unpaid, Workforce.com may assess finance charges on such amounts and recover certain fees and costs of collection associated with such amounts.
Without limitation to any of the foregoing, in any event where Client fails to maintain sufficient funds in its Bank Account to cover its payment obligations under this Payroll Agreement or when an attempt for Workforce.com to collect Client’s payment obligations is returned for any other reason (each, a “Return Event”), Workforce.com may deem Client to be in breach of this Agreement and may assess an insufficient funds charge not exceeding $300.00, which charge is in addition to any unfunded payment obligations. Upon any Return Event, Workforce.com will use commercially reasonable efforts to notify Client of the Return Event and provide Client with an opportunity to timely cure the Return Event, but Workforce.com shall not be obligated for any of Client's tax deposits and filings, employee wages, or wage garnishments or any related penalties and interest that result from a Return Event. Any request by Client for Workforce.com to reissue a failed transaction may be subject to additional fees. In any event, Client shall be liable for all debits initiated by Workforce.com pursuant to this Payroll Agreement. Client shall pay Workforce.com the insufficient funds charge along with the amount of any unfunded payment obligations (including any debit which is returned to Workforce.com because of insufficient or uncollected funds or for any other reason) upon demand, together with interest thereon at the lesser of one and one-half percent (1.5%) per month or the maximum permitted by law. Additionally, if any debit to an employee or other payee's account reversing or correcting a previously submitted credit(s) is returned for any reason, Client shall pay to Workforce.com the amount of such debit upon demand, including interest at the rate set forth above. Client shall cooperate with Workforce.com, and any other parties involved in processing any transactions to recover funds credited to any employee as a result of an error made by Workforce.com or another party processing a transaction on behalf of Workforce.com. Workforce.com may charge back any amount that Workforce.com advanced and which Client failed to have available for Workforce.com.
Amounts withdrawn from the Bank Account for payroll direct deposits and payroll taxes (“Payroll Funds”) will be held by Workforce.com in accounts at its financial institutions (collectively, the “Payroll Account”) until such time as those payments are due to your employees and/or independent contractors and the appropriate taxing agencies, and no interest will be paid to you on these amounts. You acknowledge that Workforce.com is entitled to invest the Payroll Funds in accordance with its investment guidelines established from time to time, and that Workforce.com, in its own capacity, is entitled to all income and gains derived from or realized from such investments and is not accountable to you, your employees, or any other person for such income or gains. In order to facilitate the timely payment of payroll direct deposits and payroll taxes, Workforce.com may pledge any investments held in the Payroll Account in connection with a loan, rather than convert such investments to cash for each tax payment. To the extent Workforce.com receives the Payroll Funds, Workforce.com shall indemnify and hold you harmless from and against any loss of any portion of the principal amount of the Payroll Funds (including any losses of principal resulting from the investment of the Payroll Funds) caused by Workforce.com while holding the funds in its Payroll Account. If Workforce.com incurs losses on the investment of the Payroll Funds or uses the Payroll Funds for any other purpose, Workforce.com will make the required payroll direct deposits and payroll tax deposits on your behalf by using its own funds or other assets. You acknowledge that no state or federal agency monitors or assumes any responsibility for our financial solvency.
Workforce.com calculates applicable payroll taxes in accordance with state requirements; however, due to differences in computational methods (e.g., rounding), it is possible that such computation of your applicable taxes may deviate in a fractional manner from the amount charged by an applicable taxing authority (typically a difference of less than $0.10 per taxing authority per payroll). Sometimes, this will result in Workforce.com withdrawing slightly less than what ultimately is required to be remitted to the applicable taxing authority. In this case, you agree that any such computation is correct, but Workforce.com will cover the difference on your behalf and will not seek additional funds from you. Sometimes, this will result in Workforce.com withdrawing slightly more than what ultimately is required to be remitted to the applicable taxing authority. In this case, you agree that any such computation is correct, and that you are not entitled to a refund of or credit for the excess funds.
In the event that Workforce.com erroneously credits an amount to the Bank Account in excess of the amount that should have been credited (the “Excess Credit Amount”), if any, then you shall promptly notify Workforce.com as soon as you become aware of such erroneous credit. You authorize Workforce.com to debit any Excess Credit Amounts from the Bank Account, and if the Bank Account contains insufficient funds to cover the Excess Credit Amount, you agrees to promptly refund the Excess Credit Amount through other payment methods that Workforce.com may deem acceptable at its sole discretion.
For customers who are processing payments through Kotapay: you acknowledge that for the purposes of certain payments you have a direct relationship with Kotapay (registered office 4334 18 Ave S, Suite 200, Fargo, North Dakota 58103), governed by a separate agreement. Workforce.com is not a party to your agreement with Kotapay and will not be held liable for the actions of Kotapay.
The Payroll Service will enable you to enter the Payroll Information and to approve and submit it for creation, formatting, and transmission of Entries in accordance with the NACHA Rules and the UCC. Workforce.com may reject any Payroll Information or Entry which does not comply with the requirements in the Payroll Agreement, NACHA Rules, or the UCC, or with respect to which the Bank Account does not contain sufficient available funds to pay for the Entry. If any Payroll Information or Entry is rejected, Workforce.com will make a reasonable effort to notify you promptly so that you may correct such Payroll Information or request that Workforce.com correct the Entry and resubmit it. A notice of rejection of Payroll Information or an Entry (each, a “Rejection Notice”) will be effective when given and may be delivered through any means, including via email or through your Account. Workforce.com will have no liability to you for: (a) the rejection of any Payroll Information or Entry or any Claims directly or indirectly arising therefrom; or (b) any delay in providing, or any failure to provide, you with a Rejection Notice, or any Claims arising directly or indirectly therefrom. If you request that Workforce.com correct any Payroll Information or Entries on your behalf, Workforce.com may attempt to do so; provided, however, that Workforce.com is not obligated to make any requested correction, and is not liable for any Claims or other consequences that may directly or indirectly result from any attempt to correct, or failure to correct, such Payroll Information or Entries.
After the Payroll Information has been approved by you (such action, to “Submit,” and Payroll Information that has been submitted in the foregoing manner, “Submitted Payroll Information”) and received by Workforce.com, you may not be able to cancel or amend such Submitted Payroll Information. Workforce.com will use reasonable efforts to act on any cancellation or amendment requests it receives from you prior to transmitting the Entries to the ACH or gateway operator, but will have no liability if the cancellation or amendment is not effected. You will reimburse Workforce.com for any expenses, losses, fines, penalties, or damages Workforce may incur in effecting or attempting to effect such a request. Except for Entries created from Payroll Information that has been re-approved and re-Submitted by you in accordance with the requirements of the Payroll Agreement, Workforce.com will have no obligation to retransmit a returned Entry to the ACH or gateway operator if Workforce.com complied with the terms of the Payroll Agreement with respect to the original Entry.
Workforce.com will process the Submitted Payroll Information and Entries in accordance with its then-current processing schedule applicable to you, provided that: (a) the Submitted Payroll Information is received no later than your applicable cut-off time for Submitted Payroll Information on a business day; and (b) the ACH is open for business on that business day. If Workforce.com receives approved and Submitted Payroll Information after the applicable cut-off time for Submitted Payroll Information on a given business day, or if Workforce.com receives the Submitted Payroll Information on a non-business day, Workforce.com will not be responsible for failure to process the Submitted Payroll Information on that day. If any of the requirements of clauses (a) or (b) of this section are not satisfied, Workforce.com will use reasonable efforts to process the Submitted Payroll Information and transmit the Entries to the ACH with the next regularly-scheduled file created by Workforce.com (which will only occur on a business day on which the ACH is open for business). The standard processing time for payroll and contractor payments is four (4) banking days; provided that, pursuant to an applicable Order Form, Workforce.com and Client may agree to a shorter processing time; and provided, further, that in the event of any Client Return Event, Workforce.com reserves the right to re-establish a processing time of four (4) banking days for the duration of the remaining Term, with no refund of additional fees.
For customers who are processing payments through Kotapay: ACH payments are administered by Kotapay. Kotapay’s standard processing time for payroll and contractor payments is four (4) business days. Expedited payment may be possible for an additional cost, governed by a separate agreement with Kotapay.
Origination, receipt, return, adjustment, correction, cancellation, amendment, and transmission of Entries must be in accordance with the NACHA Rules, and, with respect to credit Entries which constitute Payment Orders, the UCC, as both are varied by this Agreement. You acknowledge that you have had an opportunity to review, and agree to comply with, and be bound by, the NACHA Rules and the UCC.
Credit given by Workforce.com to you with respect to an ACH credit Entry is provisional until Workforce.com receives final settlement for such Entry through a Federal Reserve Bank. If Workforce.com does not receive such final settlement, you are hereby notified and agree that Workforce.com is entitled to a refund from you in the amount credited to you in connection with such Entry, and the party making payment to you via such Entry (i.e., the Originator (as defined in the NACHA Rules) of the Entry) shall not be deemed to have paid you in the amount of such Entry.
Upon your request, Workforce.com 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 your request, and cannot guarantee that the Entry will be successfully reversed. You agree to reimburse Workforce.com for any costs or expenses incurred in attempting to honor such a reversal request. If required under the NACHA Rules or the UCC, you must obtain a payee’s consent before attempting to reverse an Entry that was credited to such payee. By initiating a request to reverse an Entry that was credited to a payee, you represent and warrant that you have already obtained the payee’s consent for the reversal, if such consent is required under the NACHA Rules or the UCC.
Under the NACHA Rules, which are applicable to ACH transactions involving your Account, Workforce.com is not required to give next day notice to you of receipt of an ACH item, and will not do so. However, Workforce.com will continue to inform you of the receipt of payments in the periodic Bank Account transaction history report that it makes available to you in your Account. You acknowledge and understand that while you may not be notified via email of every Bank Account transaction initiated by Workforce.com in connection with the Payroll Service, you may view Bank Account transaction information in your Account.
You expressly acknowledge that Workforce.com does not intentionally or knowingly engage in or support International ACH Transactions (“IATs”), as defined in the NACHA Rules. You represent and warrant that (a) the direct funding for the Entries originated by Workforce on behalf of you does not come from or involve a financial agency office that is located outside the territorial jurisdiction of the United States; (b) you will not instruct Workforce.com to create, originate, or transmit Entries that use IAT as the Standard Entry Class Code (as defined in the NACHA Rules), or are otherwise required to be IATs under the NACHA Rules; and (c) you will not engage in any act or omission that causes or results in Workforce.com creating, originating, or transmitting an IAT or a payment that should have been categorized as an IAT pursuant to the NACHA Rules. Workforce.com may, in its sole discretion, temporarily or permanently suspend providing the Payroll Service to you, without liability, if Workforce.com has reason to believe that you have breached any of the foregoing representations and warranties in this paragraph. You acknowledge that you are the Originator (as defined in the NACHA Rules) of each Entry and assume the responsibilities of an Originator under the NACHA Rules. You further acknowledge that under the NACHA Rules and the UCC, Workforce.com, as a Third-Party Sender (as defined in the NACHA Rules), is required to make certain warranties on behalf of the Originator with respect to each Entry. You agree to indemnify Workforce.com for any Claim which results, directly or indirectly, from a breach of such a warranty made by Workforce.com on behalf of you, unless such breach results solely from the gross negligence or intentional misconduct of Workforce.com. You also acknowledge that under the NACHA Rules and the UCC, Workforce.com is required to indemnify certain persons, including, without limitation, the ODFI (as defined in the NACHA Rules), for the Originator’s failure to perform its obligations thereunder. You agree to indemnify Workforce for any Claims which result from the enforcement of such an indemnity, unless the enforcement results solely from Workforce’s own gross negligence or intentional misconduct.
As required under UCC 4A, Workforce.com uses a commercially reasonable method of securing Files and overall payment processing.
Client agrees that the total dollar amount of Entries initiated by Client through Bank under all ACH Services and pending on a given day shall not exceed: (i) the established exposure limit should one be established by the Bank. Establishment of an exposure limit should not be interpreted or construed by Client as a commitment or agreement to provide any credit or loans to a Client and is subject to modification or termination at any time by Bank; (ii) any other limit disclosed or communicated by Bank to Client, such as, but not limited to, the collected or available balance.
Without limiting the above and for the avoidance of doubt, you acknowledge: (v) that you have had the opportunity to access the current version of the NACHA Rules, (w) that you assume and make the representations and warranties required under the NACHA Rules, (x) that we are authorized to undertake each Entry initiated on your behalf, (y) that we may establish an appropriate exposure limit for Entries initiated on your behalf, and (z) that we may audit your adherence to the NACHA Rules should that be necessary as determined by us.
In order to use the Payroll Service, you must submit accurate wage and payroll information to Workforce.com during and after the enrollment process. We will not be liable for any penalty, interest, or other Claim that results from inaccurate or incomplete information that you or your representative supplies. Workforce.com shall only file tax returns on your behalf once you have processed your payroll through the Platform and the payroll has been paid out to the payees. You shall timely and accurately update all wage and payroll information as necessary to reflect changes and respond with additional information, as may be requested from time to time by Workforce.com. It is your responsibility to submit complete, timely, and accurate information in connection with the Payroll Service. Any penalty or interest incurred, or any other Claim that arises, due to inaccurate or incomplete information provided by you will be your sole responsibility. You further agree to hold Workforce.com harmless from such liability. Workforce.com, at its option, may decide not to file your payroll tax returns, pay your payroll taxes, or otherwise process your payroll if there are any unresolved problems with any information requested by Workforce.com or submitted by you or your representative. Workforce’s sole liability and your sole remedy for Workforce’s negligent failure to perform the payroll tax portion of the Payroll Service shall be as follows: (a) Workforce.com will remit the payroll taxes received from you to the appropriate taxing authority; and (b) Workforce.com will reimburse you or pay directly to the appropriate taxing authority any penalties resulting from such negligent error or omission by Workforce.com, provided that you must use reasonable efforts to mitigate any penalties or losses resulting from such negligent error or omission.
Important Tax Information: Even though you have authorized a third party, such as Workforce.com, to file payroll tax returns and make payroll tax payments, ultimately, you are held responsible by taxing authorities for the timely filing of employment tax returns and the timely payment of employment taxes for your employees. Workforce.com and the IRS recommend that you enroll in the U.S. Treasury Department’s Electronic Federal Tax Payment System (“EFTPS”), to monitor your IRS account and ensure that timely tax payments are being made for you. You may enroll in the EFTPS online at www.eftps.gov, or by calling (800) 555-4477 for an enrollment form. State tax authorities generally offer similar means to verify tax payments. you should contact the appropriate state offices directly for details.
In the event that a direct deposit payroll payment fails to be paid to the payee and Workforce.com cannot ultimately successfully make a payment on your behalf to the payee, and the funds are returned to Workforce.com (“Unpaid Funds”), we will notify you of such Unpaid Funds and provide you with the appropriate details related to those funds. In addition, Workforce.com will return the Unpaid Funds to you in accordance with Section 5 of these Payroll Terms. You, not Workforce.com, are required to contact payees and/or otherwise resolve the Unpaid Funds. You acknowledge that you are responsible for complying with all applicable state unclaimed or abandoned property laws related to Unpaid Funds, and you hereby expressly release Workforce.com from all liability and Claims directly or indirectly arising from state unclaimed or abandoned property laws, including any applicable penalties and/or interest. Workforce.com shall have no obligation to defend or otherwise indemnify you in the event of an audit, examination, assessment, or other enforcement action by a state related to the Unpaid Funds under its unclaimed or abandoned property laws. You may update the required wage and payroll information as necessary to reflect any necessary changes in accordance with the provisions of these Payroll Terms to allow Workforce.com to re-perform the direct deposit payroll payment on your behalf.
You acknowledge and understand that if you terminate the Payroll Service through your Account or Workforce.com terminates the Payroll Service pursuant to this Agreement, then such termination may not be reversible. In the event that either party terminate your Payroll Service, then as of the time of such termination, Workforce.com will have no obligation to make further payroll tax filings on your behalf. Notwithstanding the foregoing, if you or we terminate the Payroll Service, you will be asked to make specific elections regarding whether you would like Workforce.com to make certain final payroll tax filings (such filings, the “Final Payroll Tax Filings”) on your behalf following such termination of the Payroll Service (such elections, the “Post-Termination Filing Elections”). If you do not provide your Post-Termination Filing Elections promptly following termination of the Payroll Service, then you authorize Workforce.com to make the Post-Termination Filing Elections for you on your behalf (the “Workforce Selections”). You acknowledge and agree that Workforce.com may rely on your Post-Termination Filing Elections and the Workforce Selections, and Workforce is not responsible or liable for (a) any consequences or Claims arising (directly or indirectly) from such reliance; or (b) any Resulting Errors, or any consequences or Claims arising (directly or indirectly) from any Resulting Errors, in the Final Payroll Tax Filings.
Workforce.com acts as an intermediary between employers and their employees and/or independent contractors. You hereby represent and warrant that you have obtained all necessary consents and authorizations from your employees and independent contractors necessary for Workforce.com to provide the Payroll Service as contemplated herein.