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HomeMy WebLinkAboutService Agreement with Payroll America for payroll processing services Additional Terms ADDITIONAL TERMS 1 Payroll, Payroll Tax Filing and Other Payroll Related Services. A Subject to the terms and conditions of this Agreement, PayrollAmerica (PAl) agrees to provide Client with any and all of the payroll, payroll tax filing, and other payroll related data processing services covered by this Agreement of which Client may from time to time during the term of this Agreement, request PAl to provide to it (the services). B In order to receive Tax Filing Services, Client must execute certain additional forms and agreements including, without limitation, a Limited Power of Attorney, EFT Agreement, and Client Payroll Information Forms. C Client acknowledges that the Services (including Tax Filing / Payment Services) are based upon information supplied by the client (including proof of federal, state and local tax identification numbers) and the result of PAl's Payroll Services. Client is responsible for the accuracy of all such information and the verification of payroll information, payroll tax filing and all other data. D Client acknowledges and understands that certain of the Services including without limitation Tax Filing / Payment Services provided by PAl hereunder will require Client to remit or to otherwise make available sufficient good funds to PAl within the deadline established by PAl which funds subject to this paragraph 1, D are to be applied by PAl to satisfy Client's third party payment obligations covered by the Services (including, without limitation, as applicable, Client's payment obligations to its employees and/or taxing authorities). Accordingly, client shall at all times during which it is receiving such Services, have sufficient, good funds Client's or PAl's designated bank or other account within the deadline established by PAl to satisfy Client's third party payment obligations in their entirely. Notwithstanding anything to the contrary contained in this Agreement (or any other agreement) between PAl and client, PAl shall have the right to terminate this Agreement and/or anyone or all of the Services immediately upon notice to Client if Client's failure to provide (or otherwise make available) sufficient, good funds to PAl within the deadline established by PAl shall cause a loss or risk of loss (in PAl's sole judgment) of funds to PAl. If anyone or all of the Services is/are terminated by PAl, Client will immediately: (i) become solely responsible for all of Client's third party payment obligations covered by the Services then and thereafter due (including, in the case of Tax Filing / Payment Services, all related penalties and interest). (ii) reimburses PAl for all payments made by PAl hereunder (in anticipation of receiving sufficient, good funds from Client) on Client's behalf to any third party and/or (iii) pay any and all fees and charges invoiced by PAl to Client relating to any such third party payments and all other Services, and PAl shall have the right to allocated any good, sufficient funds remitted by Client or otherwise made available by Client to PAl in such priorities and for such purposes as PAl (in its sole' discretion) may determine appropriated (including, without limitation, for the purpose of reimbursing PAl for any payments made by PAl hereunder in anticipation of receiving sufficient, good funds from Client). If PAl may terminate its Services hereunder but elects not to do so, PAl may require Client to pay Client's outstanding and all future third party payment amounts covered by the Services and/or PAl's fees and charges for the Services hereunder to PAl's by either bank or certified check or by wire transfer as a condition to Client's continuing to receive PAl's services. Client acknowledges and agrees that PAl may commingle Client's funds with other clients, PAl's or PAl-administered funds of a similar type. All references to "Client" in this clause and elsewhere in this Agreement shall refer to Client, its affiliates, subsidiaries and/or its parent company, as applicable, if any such entities are receiving Services pursuant to this Agreement. IF THE CLIENT IS REQUIRED TO REMIT OR OTHERWISE MAKE ITS FUNDS AVAILABLE TO PAl IN ADVANCE OF, AND FOR THE PURPOSE OF MAKING PAYMENT (S) TO THIRD PARTIES AS PART OF PAl's SERVICES (INCLUDING, WITHOUT LIMITATION, TAX FILING SERVICES OR USE OF PAl CHECKS), AMOUNTS EARNED ONSUCH FUNDS, IF ANY, BETWEEN THE DATE(S) OF PAl's RECEIPT OF SUCH FUNDS FROM CLIENT OR PAl's WITHDRAWAL OF SUCH FUNDS FROM CLIENTS DIRECT DEBIT ACCOUNT OR OTHER DESIGNATED BANK ACCOUNT AND THE DATE(S) SUCH FUNDS ARE TO BE PAID TO THIRD PARTIES (INCLUDING, WITHOUT LIMITATION, ANY TAXING AUTHORITIES OR EMPLOYEES OF CLIENT) WILL BE FOR THE BENEFIT, AND THE SOLE PROPERTY, OF PAl. 2 Conversion to the Service. After the effective date of this Agreement, PAl shall, to the extent applicable, convert the applicable Client files, databases and other information necessary for Client to use the Services (the "Client Files") to make such Client files compatible with the Services selected by Client. Client agrees to cooperate with PAl and provide PAl with all necessary information and assistance required for PAl to successfully convert the Client Files. Client will assign a liaison person to assist and cooperate with PAl in such conversion. 3 Use of Service. A Client assumes exclusive responsibility for the consequences of any instructions Client may give PAl, for Client's failure to properly access the Services in the manner prescribed by PAl, and for Client's failure to supply accurate input information. 8 Client agrees that it will use the Services in accordance with such policies as may be established by PAl from time to time, as communicated by PAl to Client. C Client agrees that, except as otherwise permitted by PAl, Client will use the Service only for its own internal business purposes and will not sell or otherwise provide, directly or indirectly, any of the Services or any portion thereof to any third party. D Client understands that it shall be responsible for reviewing all paychecks, disbursement records, and reports prepared by PAl for validity and accuracy according to Clients records, and Client agrees that it will notify PAl of any discrepancies promptly after receipt thereof (but in any case before distributing any paychecks or relying on any such disbursement records or reports). 4 No Warranty THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES, THE PAl PRODUCTS AND/OR ANY CUSTOM PROGRAMS CREATED BY PAl. 5 Confidentiality of client files; File security and Retention. A Client Files shall remain the exclusive and confidential property of Client. PAl shall treat as confidential and will not disclose or otherwise make available any Client Files to any person other than employees of PAl with a need-to-know. PAl will instruct its employees who have access to the Client Files to keep the same confidential by using the same care and discretion that PAl uses with respect to its own confidential property and trade secrets. B PAl will take reasonable precautions to prevent the loss of or alteration to the Client Files, but PAl cannot guarantee against any such loss or alteration. Accordingly, Client will, to the extent it deems necessary, keep copies of all source documents of the information delivered to PAl or input by Client the PAl system and will maintain a procedure external to the PAl system for the reconstruction of lost or altered Client Files. C PAl will to the extent applicable, retain the Client Files held by PAl in the PAl system in accordance with, and to the extent provided by PAl's then prevailing records retention policies, dispose of all Client Files in any manner deemed appropriate by PAl. At Clients request and provided PAl has been paid for all Services as set for the in Paragraph 8 below, PAl will provide Client, in the standard PAl format and at PAl's the standard rates for such format, with any and all of the Client Files requested by Client which are then in PAl's possession. D Notwithstanding the forgoing, PAl may use the Client Files in the compilation of statistical data in which the Client Files are not identifiable, which statistical data shall be the sole and absolute property of PAl. PAl shall have the sole right to use, sell and distribute such statistical data. 6 Ownership, Licenses, Confidentiality and Non-Disclosure. A Client acknowledges that all computer programs (other than pre-packaged third party software), tutorials and related documentation made available, directly or indirectly, by PAl to Client as part of the Services (the "PAl products") are the exclusive and confidential property of PAl or the third parties from whom PAl has secured the right to use such computer and documentation. PAl and the third parties referred to in the immediately preceding sentence shall retain all rights.. and title, to the extent of their respective interests, to all copyrights, trademarks, service marks, trade secrets and other proprietary rights in the applicable logos, product names, PAl Products and Services. B A personal, non-exclusive, non-transferable right and license is being granted to client to use solely for Client's own business usage any applications software programs included in the PAl products (the "Software") which are delivered to Client as part of the Services. Client shall not have any interest in the software, except for the license granted it under this agreement. C Client shall receive all improvements, enhancements, modifications and updates to any Software which are delivered to Client as part of the Services if and as made available by PAl to its Clients generally. All such improvements, enhancements, modifications and updates may, if applicable, be delivered to Client in the form of a media, which media shall be provided by Client to PAl and shall be installed by Client. D Client may make one copy of each diskette or other media (other than those which include mechanisms to limit or inhibit copying and are marked "copy protected") on which the Software is contained for Client's backup or archival purposes in support of Client's use of the Services. Except as set forth in the immediately preceding sentence, Client shall not copy, in whole or in part, any of the PAl Products. E CLIENT Will NOT MAKE ANY ALTERATION, CHANGE OR MODIFICATION TO ANY OF THE PAl PRODUCTS (INCLUDING THE SOFTWARE) OR TO ANY OF THE PAl SUPPORTED FilES USED BY PAl IN CONNECTION WITH PROVIDING THE SERVICES TO CLIENT, CLIENT MAY NOT RECOMPilE, DECOMPilE, DISASSEMBLE, REVERSE ENGINEER, OR MAKE OR DISTRIBUTE ANY OTHER FORM OF, OR ANY DERIVATIVE WORK FROM, THE PAl PRODUCTS (INCLUDING THE SOFTWARE) AND/OR SERVICES. F Client shall treat as confidential and will not disclose or otherwise make available any of the PAl Products or any trade secrets, processes, proprietary data, information or documentation related thereto nor any pricing or product information furnished by PAl (collectively the "Confidential Information"), in any form, to any person other than employees of Client with a need-to-know. Client will instruct its employees who have access to the confidential information to keep the same confidential by using the same care and discretion that Client uses with respect to its own confidential property and trade secrets. Upon the termination of this Agreement for any reason, Client shall return to PAl or destroy any and all copies of the Confidential Information which are in its possession. G Client's use of any pre-packaged third party software will be governed by the terms and conditions of the applicable third party license agreements contained in the package delivered to Client hereunder in which such pre-packaged third party software is contained. 7 Limitation of Liability. A PAl'S sole liability to Client or any third party for claims, notwithstanding the form of such claims (e.g. contract negligence or otherwise), arising out of errors or omissions in the Services provided by PAl hereunder and caused by PAl shall be to furnish a correct report, a correct paycheck or the correct Client Files, provided that Client promptly advises PAl thereof. B PAl will make every reasonable effort to provide each type of the Services in accordance with the scheduled due dates agreed upon by PAl and Client, but PAl cannot guarantee such appliance. Accordingly, PAl's sole liability to Client or any third party for claims, notwithstanding the form of such claims (e.g. contract negligence of otherwise), arising out of any such non-compliance, of the interruption in or delay of the Services for any reason, shall be to use its best efforts to provide such Services and/or to resume the Services, as promptly as reasonably practicable. C With respect to Tax Filing Services only, based upon the information supplied by Client and provided that Client has fully complied with its obligations pursuant to Paragraph 1 (B) above. PAl shall be responsible for all applicable deposits, filing and reconciliation's (not including the filing or depositing of excise, sale, use, corporate and/or similar taxes). PAl's sole liability to Client or any third party for claims, notwithstanding the form of such claims (e.g. contract, negligence or otherwise) arising out of (i) PAl making an error in interpretation of federal, state and/or local payroll tax laws, rules or regulations or (ii) errors or omissions (other than interpretive errors or omissions) in Tax Filing Services provided or regulations or to be provided by PAl hereunder and caused solely by PAl, shall be to furnish a correct report or data and to correct any Clients Files or tax agency filings; provided, however, that in such event, Client shall be responsible for any additional taxes and PAl shall be responsible for any penalties or similar charges relating to such error or omission and provided further that with respect to any interest charges relating to such error or omission, PAl shall be responsible for interest charges if PAl has debited the Client's designated account for the associated taxes and is holding such monies prior to the occurrence of such error or omission and Client shall be responsible for interest charged in all other situations. o Except as otherwise set forth in Paragraph 7(C) or 7(E) PAl shall not have any monetary liability under this Agreement for any damages resulting from claims made by Client or any third party arising from or related to any and all causes not covered by Paragraph 7(A), 7(8), and 7(E) or arising from or related to any third party software. PAl's sole liability under this Agreement for damages (monetary or otherwise) resulting from claims made by Client or any third party arising from or related to any and all causes not covered by Paragraph 7(A), 7(8), 7(C), and 7(E) shall be limited to the lesser of (i) the amount of the actual damages incurred by Client or (ii) an amount which will not exceed one month's average total monthly charges paid by Client to PAl for the specific Services on which Client's claim is based during the twelve months preceding the month in which the damage or injury is alleged to have occurred, or such lesser number of months if Client has not received twelve months of such specific Services. E PAl's sole liability under this Agreement for money damages resulting from claims made by Client arising from or related to fraudulent or dishonest acts or omissions of PAl's officers, employees or agents in performing the Services hereunder shall be limited to the loss of funds caused solely by fraudulent of dishonest acts or omissions with respect to Tax Filing Service only. F PAl shall not be liable or deemed to be in default for any delay or failure to perform under this Agreement or for interruption, in the Services resulting, directly or indirectly, form any cause beyond PAl's reasonable control. G IN NO EVENT WILL PAl BE RESPONSIBLE FOR SPECIAL, INDIRECT INCIDENTAL OR CONSEQUENTIAL DAMAGES WHICH CLIENT MAY INCUR OR EXPERIENCE ON ACCOUNT OF ENTERING INTO OR RELYING ON THIS AGREEMENT, EVEN IF PAl HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES H The forgoing provisions of this Paragraph 7 allocate the risks of this Agreement between PAl and Client and PAl's pricing for the Services reflects this allocation of risks and the limitation of liability, specified herein. This Paragraph 7 sets forth the full extent of PAl's liability under this Agreement (monetary or otherwise) for any cause or action, regardless of the form in which any such claims or action may be asserted against PAl (e.g. contract, negligence or otherwise), and sets the Client's sole remedies. 8 Fees; Taxes; Payments. A Client agrees to pay PAl for the services referred to on the reverse side of this Agreement at the rates set forth on the reverse side of this Agreement for the first six months after the date this Agreement is accepted by Client (assuming no changes in requirements, specifications, volumes or quantities): thereafter, the prices for the Services covered by this Agreement may be changed by PAl as set forth below. Client agrees to pay PAl for payroll, payroll tax filing, and any other payroll related data processing services included in the Services which are specifically referred to on the reverse side of this Agreement at PAl's then prevailing prices for such Services. PAl shall have the right to increase all such prices at any time and from time to time after the date referred to in the first sentence of this Paragraph 8 (A) upon at least 30 days prior written notice to Client, provided such change is part of a general price change by PAl to its clients for affected items. It is specifically understood that the prices set forth on the reverse side of this Agreement do not include the charges referred to in Paragraph 1 (D) above or monthly communication charges or communication installation charges; such charges will be paid by Client. B All invoices shall be paid by Client in full within ten days after receipt. If Client fails to pay any amount due under this Agreement, whether by acceleration or otherwise, Client, upon demand shall pay interest at the rate of 1.5% per month (but not exceed the maximum allowed by law) on such delinquent amount from the due date thereof until the date of payment. Client agrees to reimburse PAl for any and all expenses PAl may incur, including interest and reasonable attorney fees, in taking action to collect any amount due PAl hereunder. Any amounts remaining due after 90 days from date services rendered shall, at PAl's option, be collected through authorized electronic debit to the clients account, and or be paid out of funds held by PAl that were intended for tax payments or liabilities. C There shall be added to all payments hereunder amounts equal to any applicable taxes levied or based on this Agreement, exclusive of taxes based on PAl's net income. 9 Term and Termination; Default by Client; Remedies Upon Default. A During the first 90 days of service with respect to Services covered by this Agreement (other than Tax Filing Services) Client may terminate this Agreement at any time; thereafter, either PAl or Client may terminate this Agreement upon 90 days prior written notice to the other. B With respect to Tax Filing Services, either PAl or Client may terminate this Agreement, upon at least 30 days prior written notice, unless Client is in violation of any of its obligations under Paragraph 1 (B) above, in which case PAl may, at its opinion, immediately terminate this Agreement as to Tax Filing Services. C Should Client (i) default in the payment of any sum of money hereunder, (ii) default in the performance of any of its other obligations under this Agreement, (iii) commit any act of bankruptcy or become the subject of any proceeding under the Bankruptcy Act or become insolvent, or if any substantial part of Client's property becomes subject to any levy, seizure, assignment, application or sale for or by any creditor of governmental agency, or (iv) experience any material adverse changes (in PAl's sole opinion) in its financial condition, then in any such event, PAl at its option, may, upon written notice thereof, (a) terminate this Agreement, (b) declare all amounts due and to become due immediately due and payable and/or (c) require Client to deposit an amount equal to its average per processing charge or to repay for any further processing. The remedies contained in this Paragraph 9 (C) are cumulative and in addition to all other rights and remedies available to PAl under this Agreement by operation of law or otherwise. 10 Laws and Governmental Regulations. Client shall be responsible (i) for compliance with all laws and governmental regulations affecting its business and (ii) for any use it may make of the Services to assist it in complying with such laws and government regulations, and, except for its responsibilities relating to Tax Filing Services set forth herein, PAl shall not have any responsibility relating thereto (including, without limitation, advising Client of Client's responsibilities in complying with any laws or governmental regulations affecting Client's business). While PAl shall not have any responsibility for Client's compliance with the laws and regulations referred to above (other than for PAl's responsibilities relating to Tax Filing Services set forth herein), PAl agrees to use its best efforts to cause the applicable legal and regulatory responsibilities: in no event shall Client rely solely on its use of the Services in Complying with any laws and governmental regulations. 11 Official Bank Checks; Indemnification. A If Client elects to receive payroll checks drawn upon the account of PAl's bank ("Official Bank Checks") rather than payroll checks drawn on its own account at such bank PAl shall not be obligated to provide Official Bank Checks unless and until (i) PAl has entered into an agreement with Clients bank to provide Official Bank Checks as part of the Services, and (ii) Client's bank has notified PAl in writing that Client is eligible to receive Official Bank Checks. Client agrees that PAl shall have no further obligation to process Client's payroll on Official Bank Checks at any time after the termination of PAl's Agreement with the Client's bank or the Agreement between Client and its Bank which had made Client eligible to receive Official Bank Checks, in such case, PAl shall continue to provide the Services to Clients, but on payroll checks drawn on Clients own account at such bank or any other bank Client may select. B Client agrees that if its bank requests that PAl delay the release of any Client payroll which is processed on Official Bank Checks, PAl must honor such instruction and will thereafter release such Official Bank Checks for disbursement to Client only after receipt of written notice from Client's bank authorizing PAl to do so. C Client agrees that PAl will not be liable for any damages to Client arising from any decision to withhold the release of a Client payroll which is processed on Official Bank Checks and that PAl will not be held responsible for any error, omission, negligence, or bad faith on the part of Clients bank, whether in connection with the notice to PAl to delay the release of such Official Bank Checks to Client or for any subsequent failure omission on the part of such bank to notify PAl to release such Official Bank Checks. Regardless of any such delay in the release of Official Bank Checks. Client will still be obligated to pay PAl for applicable payroll processing charges. o If Client receives Official Bank Checks, Client shall indemnify and hold harmless PAl from and against any loss, liability claim, damage or exposure arising from or in connection with any action proceeding or claim made or brought against PAl by any bank with which Client maintains a payroll account, or funds, for any PAl error, omission for failure incident or pursuant to PAl's providing the Services to Client which would have been corrected by PAl but for the fact that Client refuses or is unable to fund or reimburse such bank for the funding of Client's payroll account at such bank. 12 General A This Agreement shall not be assigned by Client without the prior written consent of PAl, and any attempt to assign any right, duties or obligation which arise under the Agreement without such consent will be void. B Client acknowledges that it has not been induced to enter into this Agreement by a presentation or warranty not set forth in this Agreement. This Agreement contains the entire agreement of PAl and Client with respect to its subject matter and supersedes all existing agreements and all other oral, written or other, except by a writing signed by both PAl and Client. C Nothing contained in this Agreement is intended, or shall be interpreted, to create these parties beneficiaries of or under this Agreement.