isolved Acquisition Entity Terms & Conditions
Version 2.0
Definitions: In addition to any other terms defined herein certain capitalized terms are defined on Exhibit A.
Service Access Rights, Provision, and Use:
Access to Service. Subject to the terms and conditions of this Agreement, isolved hereby grants to Employer a non-exclusive right to access the features and functions of the Service during the Term, solely for use by Users in accordance with the terms and conditions herein. Access and use of the Service by Employer and its Users will be limited to use of the Service for processing internal data of the Employer and its Affiliates. Subject to Section 4.2, isolved will carry out the services provided to Employer through the Service in accordance with all federal, state and local agencies and their respective laws.
Use of Service. Employer will access and use the Service in accordance with the Documentation and such other instructions and reasonable policies established by isolved, in each case as in effect from time to time. Employer will use the Services only for the internal business purposes of the Employer. Employer will not, and will cause the Users not to: (i) resell, sublicense, lease, time-share or otherwise make the Service available to any third party (other than its Affiliates); (ii) send or store infringing or unlawful material; (iii) send or store Malicious Code; (iv) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Service or the data contained therein; (v) modify, copy or create derivative works based on the Service; (vi) reverse engineer the Service; (vii) permit access to the Service by a Direct Competitor or access the Service for the purpose of building a competitive product or service or copying its features or user interface; (viii) use the Service, or permit it to be used, for purposes of product evaluation, benchmarking or other comparative analysis intended for publication without isolved's prior written consent; (x) copy the Service or any software component provided therein; (xi) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of the Service is compiled or interpreted, and Employer acknowledges that nothing in this Agreement will be construed to grant Employer any right to obtain or use such source code; (xii) modify the Service or the Documentation, or create any derivative work from any of the foregoing; or (xiii) assign, sublicense, sell, resell, lease, rent or otherwise transfer or convey, or pledge as security or otherwise encumber, Employer's rights under this Agreement other than as otherwise expressly permitted hereby.
No Implied Licenses. Employer acknowledges that there are no licenses granted by implication under this Agreement. isolved reserves all rights that are not expressly granted. Employer acknowledges that, as between the Parties hereto, isolved owns all intellectual property rights and proprietary interests that are embodied in, or practiced by, the Services and the Documentation. This Parties acknowledge and agree that this Agreement contemplates access and use rights with respect to the Services and no software is being provided and no licenses with regard to any software are being granted hereunder.
Term & Termination:
Term of Agreement. This Agreement shall become effective when signed by Employer and accepted by isolved (the “Effective Date”) and will remain in effect until terminated in accordance with its terms (such period the "Term").
Term of Services. isolved will not be obligated to provide access to or be liable for the Services until isolved notifies Employer of its completed implementation. Certain functions available through the Service, such as tax filing, direct deposit, ACH, Debit, isolved Checks and Administrative Service Outsourcing (ASO), are available only for as long as Employer meets isolved's eligibility requirements as set by isolved from time to time with respect to such Services. isolved may, in its sole discretion, terminate this Agreement or modify (including but not limited to modifying the Funding Authorization and timing of funds transfer with respect to Direct Deposit) or terminate any Service immediately and without notice to Employer if (i) Employer defaults in the payment of any sum of money hereunder or isolved's transactions on Employer's behalf are returned for any reason (including insufficient funds), (ii) Employer becomes insolvent, files for bankruptcy or otherwise becomes the subject of any Bankruptcy Act proceeding, or if any substantial part of Employer's property becomes subject to any levy/seizure, assignment, application or sale for or by any creditor or governmental agency, (iii) in isolved's sole opinion, Employer fails to meet isolved's eligibility requirements for such Services or Employer has any material adverse change in its financial condition, or (iv) Employer or any agent or employee of Employer is indicted of a criminal violation of law applicable to the Employers' business or any assets of its business (including but not limited to any crime involving fraud, misappropriation or embezzlement). Modification of the services pursuant to the immediately preceding sentence may include isolved requiring Employer to pay its outstanding and all future third-party payment amounts covered by the Services and all Fees and charges for the Services to isolved by bank or certified check or by wire transfer as a condition to receiving further Services. isolved may terminate services or features offered through the Service immediately without notice in the event that isolved has discontinued providing such service to direct employer clients.
Effect of Termination.
Fees. Upon receipt of a notice of termination from Employer or upon termination by isolved, all Fees for Services to be provided prior to the date of such termination will be due and payable immediately (including reimbursement expenses for any payments made by isolved hereunder on Employer's behalf to a third party) and isolved shall be permitted, in its discretion, to collect such Fees and costs by ACH debit from any Employer account or from funds held in trust by isolved on behalf of Employer.
Tax Filing Services. If (a) Employer has Tax Filing Services as of the termination date of this Agreement, (b) such termination date is the last day of an applicable tax period and (c) Employer has paid all Fees for Services for such Tax Filing Services through the effective termination date of this Agreement and provided isolved cash required to pay all liabilities required to make such tax filings, isolved shall make tax filings for the period ending on the termination date. Other than as set forth in the immediately prior sentence, unless otherwise agreed to by isolved in writing, upon termination of this Agreement, isolved shall not make any further tax or other filings and Employer will (x) immediately become solely responsible for all of its third party payment obligations covered by such Services then or thereafter due (including, for Tax Filing Services, all related penalties and interest); (y) reimburse isolved for all payments made by isolved hereunder on Employer's behalf to any third party; and (z) pay any and all fees and charges invoiced by isolved to Employer relating to the Services.
Return of Trust Accounts. Upon termination of this Agreement for any reason, isolved shall, within a reasonable amount of time, not to exceed thirty (30) days, return to Employer all funds held in trust on behalf of Employer, less the amount of any written uncashed checks written on Employer's behalf to employees or other third parties. Within two hundred ten (210) days after termination of this Agreement, isolved shall return to Employer an amount equal to the aggregate amount of any such checks written on Employer's behalf prior to the termination date that are unclaimed and uncashed as of the expiration date of each such check.
Survival. In the event of termination of this Agreement for any reason, this Section 3.3(iv), Section 4.5 (Fund Transfers With Respect to Direct Deposit Services), Section 5 (Representations, Warranties, and Disclaimers), Section 6.2 (isolved Marks), Section 7 (Fees & Additional Products), Section 8 (Indemnification), Section 9 (Confidentiality), Section 10 (Limitation of Liability; Remedies), Section 11 (Miscellaneous), and any and all other terms that pursuant to their terms contemplated survival beyond the termination of this Agreement will survive termination of this Agreement.
Additional Service Terms:
Accuracy of Employer Information and Review of Data. All Services provided hereunder will be based upon information provided to isolved by Employer including proof of federal, state and local tax identification numbers and rates. Upon receipt from isolved, whether electronically or otherwise, Employer will promptly review all payroll reports, employee earnings statements, deduction disbursement records, benefits reports, and other reports prepared by isolved (collectively "Reports") for validity and accuracy. Employer will notify isolved of any irregularities, errors, incomplete or incorrect information within 24 hours of receipt of any Reports.
Employer Use of the Service Regarding Compliance with Laws. The Services are designed to assist Employer in complying with applicable laws and governmental regulations. Nevertheless, Employer (and not isolved) will be responsible for compliance by Employer with all laws and regulations related to the operation of Employer’s business, whether federal, state, provincial or local, that may govern access to the Service, use of the Service, or the performance of Employer's obligations under this Agreement and for any use Employer or any User may make of the Service. Employer will not rely solely on its use of the Service in complying with any laws and governmental regulations. Employer understands and acknowledges that no state or federal agency monitors or assumes any responsibility for the financial solvency of third-party tax filers. Employer's obligations hereunder will include, without limitations, the duty to obtain, at its sole cost and expense, any and all licenses, permits and other authorizations necessary to perform its business and duties hereunder in a lawful manner. Without limiting the generality of the foregoing, such obligations will include receiving and retaining valid authorizations to credit and debit the accounts of employees through ACH transfer in compliance with NACHA Operating Rules. Employer shall not transmit to isolved any personally identifiable information of an individual who is a resident of the European Union.
Funding Authorization; Impound Service. If the Services provided hereunder include Direct Deposit, Employer authorizes isolved to debit Employer Accounts in the amount of the payments to be made to Employer's employees and in accordance with this Agreement. The funds transfer from Employer to isolved will be initiated by isolved for settlement two days prior to the date that payroll deposits are to be made to the Payee Accounts (the "Check Date"). Holiday bank schedules will necessitate funds transfer one day earlier to accommodate timely settlement. Failure of Employer to timely provide sufficient funds or accurate payroll data may result in delayed or inaccurate Services. isolved may, from time to time, revise the credit requirements applicable to Employer. If isolved determines (in isolved's sole discretion) that Employer's credit standing has declined, or if Employer has failed to fund consistently and timely provide sufficient funds, isolved may revise the Funding Authorization and timing of funds transfer to require, among other things, a drawdown wire to be processed two to three days prior to the Check Date. If any such revising to the Funding Authorization becomes necessary, isolved will notify Employer and if Employer does not agree in writing to such revisions (within three (3) business days of receipt of notice from isolved), isolved may immediately and without notice suspend all further provision of the Service and any related service and terminate this Agreement pursuant to Section 3.2(iii). In the event of a returned item from one or more Employer Accounts or any funding deficiency by Employer, isolved is authorized to send a reversal file to one or more of the Payee Accounts that were paid through direct deposit. Any payment made to one or more of Employer's employees based on information supplied by Employer will be funded by Employer. If Employer is receiving any services in connection with the Service that require isolved to impound funds from Employer's account to pay Employer's third party payment obligations such as Tax Filing Services, Worker's Compensation Insurance, Benefit Plan Administration Services, 401k and Pension Services, Screening Services, Direct Deposit and ACH Debit Services and/or Check™ Services (each, an "Impound Service"), Employer will have sufficient, available funds in Employer's account within the deadline established by isolved to satisfy such third-party payment obligations in their entirety. Employer must make available to isolved the full amount due to such third parties. isolved will not be responsible for any penalty or fees associated with ‘late payment,' ‘incomplete payment,' or ‘no payment' to third parties if funds are not available to impound as needed and determined by isolved.
Direct Deposit Services. isolved agrees to provide Employer with Direct Deposit services in connection with the payroll processing services that isolved provides to Employer. isolved will retain the interest earned on Employer funds held in an isolved account while payment of such funds to others is pending. isolved will submit to various funds transfer networks, such as the Automated Clearing House network or Federal Reserve System, data in the form required for the electronic crediting of payments to the designated bank accounts of Employer's employees (the "Payee Accounts") and the debiting of those payments from the Employer's authorized accounts (the "Employer Accounts"). Employer will arrange with isolved to transmit its payroll data including payroll amounts, payroll dates, employee bank account information, and any other information provided to isolved in connection with the Services (collectively, the "Payroll Data"). isolved will timely attempt to process but shall not be liable for stop payments and direct deposit reversals requested by Employer. Initiation of services under this Agreement will be subject to isolved's approval of Employer's credit.
Fund Transfers with Respect to Direct Deposit Services. Prior to the first credit to the account of any employee or other individual (a "Payee"), Employer will obtain a signed isolved Employee Direct Deposit Agreement (AEDDA) from such Payee, which is the only approved direct deposit form used by isolved. The AEDDA will authorize the initiation of credits to such Payee's account. Each Payee, by agreeing to the AEDDA, agrees that any corrections or reversals of any funds deposited in error that may not be available to reverse due to insufficient funds, closure of bank account or other reasons beyond isolved's reasonable control, may be withheld from any future check to make Employer or isolved whole. Furthermore, if there is no future check from which to withhold, Payee personally guarantees that they will refund Employer or isolved in the amount deposited in error and be responsible for any and all collection costs to Employer or isolved. In cases where Employer does not sufficiently fund the direct deposit transaction file, Payee agrees that direct deposits will automatically be reversed. Employer agrees to have each Payee sign an AEDDA. Furthermore, Employer agrees to fully reimburse isolved within 48 hours for any non-recovered funds paid to any Payee in error. After Employer pays the unrecovered Payee amount as described above, isolved will endeavor in good faith to recover the funds and, upon recovery of funds, if any, isolved will distribute those funds to Employer. Employer may not make any claim for unrecovered funds from isolved. Employer will retain a copy of each AEDDA during the period such AEDDA is in effect and for two years thereafter and will furnish such copy to isolved upon request. Employer represents and warrants to isolved and to the bank originating (the "Originating Bank") debit/credit instructions on isolved's behalf, if applicable, that: (a) each credit and debit (reversing or correcting a prior payroll credit) to the account of a Payee is timely and has been authorized pursuant to an AEDDA signed by such Payee and held by Employer; (b) at the time any credit is made to the account of any such Payee, Employer has no actual knowledge of the revocation or termination of such AEDDA; (c) each debit to the account of a Payee (reversing or correcting a prior payroll credit) is for a sum which is due and owing to Employer, that Employer has notified the Payee of such debit prior to its initiation, and that Employer has the Payee's authorization to make the debit; (d) the amount indicated by Employer as being owed to each Payee is in fact due and owing to such Payee; and (e) Employer's electronic credit payments comply with United States laws and all other applicable laws.
Representations, Warranties, and Disclaimers.
Representations and Warranties. Employer represents, warrants and covenants to isolved that during the Term (a) each of Employer's employees has authorized the initiation of credit entries and the crediting of the Payee Account in the amount and on the date specified, and such authorization is operative at the time of transmittal and crediting of the Payee Account; (b) Employer has authorized the initiation of debit entries and the debiting of the Employer Accounts in the amount and on the date specified, and such authorization is operative at the time of transmittal and debiting of the Employer Accounts; (c) Employer will fully fund the Employer Accounts in a timely manner in accordance with this Agreement; and (d) Employer will perform its obligations under this Agreement in accordance with all applicable laws and regulations.
Limitation and Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE, THE DOCUMENTATION, AND ALL SERVICES PERFORMED BY ISOLVED HEREUNDER ARE PROVIDED "AS IS," AND ISOLVED HEREBY DISCLAIMS ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY. ISOLVED DOES NOT WARRANT THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. NO WARRANTIES ARE MADE ON TRADE USAGE, COURSE OF PERFORMANCE OR COURSE OF DEALING.
Additional Disclaimers. Employer acknowledges and agrees (i) that isolved is not providing legal, financial, benefits, or tax advice to Employer and Employer acknowledges it is solely responsible for the timely filing of all payroll and other tax returns and the timely payment of all payroll and other taxes for its employees; (ii) certain Services will be provided by third parties, other than isolved and its Affiliates, and isolved will not be liable for Services provided by such third parties; and (iii) certain Services require certain power of attorney, ACH or other authorizations of Employer in favor of isolved and its Affiliates, and Employer will timely execute or cause to be executed such power of attorney, documents, instruments or other authorizations that are reasonably required by isolved to provide the Services, and the execution and delivery of such will be a condition to isolved obligation to provide such Services.
Use of Marks
Employer Marks. isolved acknowledges and agrees that the Employer Marks are exclusively owned by Employer and Employer retains all right, title and interest in and to all of such proprietary information and grants no rights therein other than as expressly granted hereunder. Employer grants to isolved a revocable, non-exclusive, non-transferable, royalty-free license, with no right to sublicense, to use the Employer Marks for the sole purpose of providing, marketing and selling access to the Service, which rights expressly permit isolved to list Employer's logos and information on its website and the Service. All goodwill from the use of the Employer Marks will inure solely to Employer.
isolved Marks. Employer acknowledges and agrees that the isolved Marks, including but not limited to isolved®, all messaging and branding, in existence now or in the future (collectively the "Branding") related to the Service and all other isolved products and services are exclusively owned by isolved and isolved retains all right, title and interest in and to all of such proprietary information and grants no rights therein other than as expressly granted hereunder. isolved grants to Employer a revocable, non-exclusive, non-transferable, royalty-free license, with no right to sublicense, to use the Branding for use in connection with the Services, which rights expressly permit Employer to including Branding on communications to employees; provided such Branding is in conformance with isolved's trademark and Branding policies in place from time to time (which are available upon request). All goodwill from the use of the isolved Marks will inure solely to isolved.
Fees & Additional Products:
Fees. Employer will pay isolved for the Service and for the rights and services provided hereunder the fees determined in accordance with this Agreement (the "Fees"). Employer will pay the Fees calculated on the rates set forth in the isolved Human Capital Management Upgrade Order (the “Service Fees”) for the first twelve (12) months after the Effective Date (the "Initial Period"), subject to modification based on changes in requirements, specifications, volumes, or quantities. Employer’s current fees supplant the Human Capital Upgrade Management Order from identified in this Agreement. isolved may increase prices at any time after the Initial Period or at any time that there is a change in Employer services, number of employees, or the frequency or volume of Employer's use of the Service. Employer will pay all invoices in full immediately upon bank draft or receipt of invoice. If Employer fails to pay any amount due hereunder, whether by acceleration or otherwise, Employer, on written demand, will pay interest at the rate of 1.5% per month (or the maximum allowed by law if less) on such past due amount from the due date thereof until the payment date. Employer will reimburse isolved for any expenses incurred, including interest and reasonable attorney fees, in collecting amounts due isolved hereunder. Set-up and implementation fees are not refundable. Fees do not include taxes related to the Services which are the sole obligation of Employer (other than income taxes applicable to isolved related to receipt of the Fees).
Exception Fees. In addition to the Fees set forth on the isolved Human Capital Management Upgrade Order, Employer agrees to pay to isolved exception fees in accordance with the isolved Exception Fee Schedule in effect as of the date of such event giving rise to such exception fee, which may be found on the Client Landing page as “isolved HCM Additional Service Fees Effective August 18, 2021”. Exception Fees include, but may not be limited to, fees for non-sufficient funds in an Employer Account (NSF), Notification of Change (NOC) charges, wiring fees, stop payment/void check fees, Employer Account changes, Signature or logo change fee, late payroll submission fee, zero quarterly report fees, and missing or applied for Tax IDs.
Additional Services and Fees for isolved Products. isolved may from time to time make available to Employer certain additional development or other services and products not included in the Service, including but not limited to those set forth on the isolved Human Capital Management Upgrade Order (each an "isolved Product"). If the fees and cost payable by Employer for such isolved Product(s) or service(s) are not set forth on the isolved Human Capital Management Upgrade Order or otherwise agreed to in writing by the Parties hereto, the fees and prices for such isolved Product(s) or service(s) will be at the then-current price published by isolved, as may be adjusted from time to time, and Employer hereby agrees to pay any such fees with respect to any such isolved Products in accordance with Section 7.1.
Indemnification:
Employer Indemnity. Employer will indemnify, defend and hold harmless isolved, its directors, officers, employees, shareholders, members and affiliated companies (the "isolved Indemnitees") from and against any claim, action, proceeding, loss, expense or damage (including reasonable attorneys' fees) arising out of or related to any of the following actions taken by Employer, including without limitation, (i) any unauthorized representations or warranties made by Employer or its agents regarding the Service or any isolved Products; (ii) any failure by Employer to comply with applicable laws; (iii) any allegations that Employer's data infringes or misappropriates a third party's intellectual property or other rights; (iv) any breach by Employer of any warranty or obligation of this Agreement or any action by isolved in reliance on any information or authorization provided to isolved by Employer; (v) any claim brought against isolved by any employee of Employer, including resulting from Employer's breach of any obligation to employee; (vi) any personal injury or property damage caused by Employer or its agents; and (vii) any isolved error, omission, or failure incident or pursuant to isolved providing the Services to Employer that would have been corrected by isolved but for the fact that Employer refused or was unable to fund or reimburse such any bank with whom Employer maintains a payroll account or funds. Employer acknowledges and agrees that each Affiliate of Employer is bound by the covenants and obligations of the Employer under this Agreement and Employer will cause all such Affiliates to abide by such covenants and obligations. Notwithstanding anything contained herein or the fact that no Affiliates of Employer are a signatory to this Agreement, Employer agrees, on behalf of itself and each of its Affiliates, that Employer and its Affiliates will indemnify, defend and hold harmless, the isolved Indemnitees for any and all actions of its Affiliates that would otherwise constitute a violation of this Agreement if such Affiliate were a signatory and Employer hereby agrees, on behalf of itself and each of its Affiliates, to waive and not raise any defense that any such Affiliate is not a signatory to this Agreement.
isolved Indemnity. isolved will defend, indemnify, and hold Employer, its directors, officers, employees, shareholders, members, and affiliated companies (the "Employer Indemnitees") harmless from and against any loss, damage or costs (including reasonable attorneys' fees) incurred in connection with claims, demands, suits, or proceedings ("Claims") made or brought against Employer Indemnitees by a third party alleging that the use of the Service as contemplated hereunder and in the applicable Documentation infringes the U.S. intellectual property rights of a third party. isolved may, at its sole option and expense: (i) procure for Employer the right to continue using the Service under the terms of this Agreement; or (ii) replace or modify the Service to be non-infringing without material decrease in functionality. Notwithstanding the provisions of this Section 8.2, isolved assumes no liability for infringement claims arising from (a) the combination of the Service with products not provided by isolved, (b) any modification to the Service unless such modification was made by isolved or at the written direction of isolved, or (c) use of the Service not in accordance with their applicable Documentation. THE PROVISIONS OF THIS SECTION 8.2 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF ISOLVED, AND THE EXCLUSIVE REMEDY OF EMPLOYER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT RIGHT, COPYRIGHT, TRADE SECRET, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHT.
Notice and Control of Claim. The indemnified Party will (i) promptly notify the indemnifying Party of any claim for which it believes it is entitled to indemnification, (ii) grant the indemnifying Party sole control of the defense and all related isolved settlement negotiations (provided it agrees to be liable for such indemnity), and (iii) provide the indemnifying Party with the assistance, information and authority necessary to perform the above. The indemnified Party may, at its option and expense, be represented by separate counsel in any such action. No Party entitled to indemnification hereunder will be subject to the terms of a settlement without such Party's prior written consent.
Confidentiality:
Confidentiality. Either Party hereto (a "Disclosing Party") may, from time to time during the Term, furnish or make available to the other Party hereto (the "Recipient") certain Confidential Information. The Recipient will not use or disclose Confidential Information except as necessary to perform its obligations hereunder and will take reasonable efforts to protect the Confidential Information and will not transmit, transfer, distribute or allow access to the Confidential Information to any third party, other than to Users in compliance with the terms of this Agreement. Employer will have written agreements with its own employees to whom Confidential Information will be made available, and such written agreements will have terms at least as protective of isolved as those contained herein.
Legally Compelled Disclosure. The Recipient will not be in breach of this Agreement by delivering some or all of the Confidential Information to a court, to law enforcement officials, and/or to governmental agencies, but only if it limits the disclosure to the minimum amount that will comply with applicable law (such as in response to a subpoena) or that is necessary to enforce its legal rights against the Disclosing Party. Unless prevented by law, the Recipient agrees to notify the Disclosing Party as far in advance as reasonably possible before the Recipient delivers such Confidential Information to any of those third parties. If requested by the Disclosing Party, and if permitted by law, the Recipient will cooperate with the Disclosing Party, at the Disclosing Party's expense, in seeking to limit or eliminate legal requirements that compel disclosure, or in seeking confidential treatment by the applicable court, law enforcement officials and/or governmental agencies.
Equitable Relief. Employer agrees that a breach of its obligations in this Section 9 may cause the isolved harm for which monetary damages would not be adequate compensation and agrees that, in the event of such breach, isolved is entitled to seek equitable relief, including injunctive relief, in addition to any other remedy available at law or in equity, subject to any express exclusions or limitation in the Agreement.
Limitation of Liability; Remedies:
ISOLVED WILL NOT BE LIABLE IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE FOR DAMAGES SUFFERED OR INCURRED BY EMPLOYER OR FOR LOSS OF PROPERTY, LOSS OF PROFITS OR REVENUE, LOSS OF USE OF PROPERTY, COST OF CAPITAL, CLAIMS OF EMPLOYER, OR FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL, OR PUNITIVE DAMAGES (INCLUDING LOST DATA, LOST BUSINESS OR PROFITS, AND INTERRUPTION OF BUSINESS), WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE. WITH THE EXCEPTION OF A PARTY'S OBLIGATIONS UNDER SECTIONS 8 (INDEMNIFICATION) OR 9 (CONFIDENTIALITY), THE TOTAL CUMULATIVE LIABILITY OF ISOLVED FOR ANY CLAIMS ARISING OUT OF THIS AGREEMENT (INCLUDING WITH RESPECT TO PRODUCTS AND SERVICES PROVIDED HEREUNDER) IS LIMITED TO THE TOTAL AMOUNT ACTUALLY PAID BY EMPLOYER TO ISOLVED DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE. NOTWITHSTANDING THE FOREGOING, NOTHING HEREIN LIMITS EITHER PARTY'S INTELLECTUAL PROPERTY RIGHTS.
isolved's sole liability to Employer or any third party for claims of any type or character arising from errors or omissions in the services that are caused by isolved will be to correct the affected client report, data or tax agency's filings, as the case may be. Upon the request of Employer, isolved will correct any error or omission made by isolved in connection with the Services at no additional charge to Employer. If an applicable taxing authority imposes a penalty on or assesses interest against Employer as a result of an error or omission made solely by isolved in performing the tax filing services hereunder, isolved will (i) pay all penalties resulting from isolved's error or omission and (ii) pay any interest charges imposed on Employer for the failure to pay funds to the extent and for the period that such funds were held by isolved. In any such case, Employer will be responsible for all additional taxes and any other interest charges.
Neither isolved, third party ACH processors, nor the Originating Bank will be liable for any damages to Employer arising from any decision to refrain from or delay originating debit/credit entries or issuing any check in connection with Employer's payroll, (i) after reasonable efforts to verify such debit/credit entries by the required security procedure have failed, (ii) due to Employer's creditworthiness or (iii) because isolved has not received timely funds from Employer as required herewith in this agreement. Employer agrees that isolved will not be liable for any damages to Employer arising from any bank decision to withhold the release of an Employer payroll that is processed by check. Regardless of any such delay in the release of any check, Employer will still be obligated to pay isolved for applicable payroll processing charges. With respect to Direct Deposit Services, isolved, third party ACH processors and the Originating Bank, will not be liable for detecting errors in such instructions. isolved, its third party ACH processor and or the Original Bank will utilize security procedures to attempt to prevent problems with transmission of instructions. Such security procedures will include (a) a unique file identification number and transmission password, (b) encryption, and (c) automated verification of total dollars and number of items in the file. Employer agrees that this procedure constitutes a commercially reasonable method of providing security against unauthorized instructions. Employer will be bound by any debit/credit instruction issued by or on behalf of Employer and received and verified by the Originating Bank in accordance with such security procedure, and neither isolved, third party ACH processors nor the Originating Bank will be liable for any loss sustained as a consequence of any instructions that are not authentic if isolved has appropriately adhered to its procedures.
Miscellaneous:
Entire Agreement. Employer agrees that it has read this Agreement, understands it and agrees to be bound by its terms and conditions. The Parties agree that all prior and contemporaneous understandings, agreements, communications and representations made or had between the Parties are superseded by this Agreement, which constitutes the complete and exclusive statement of the terms and conditions between Employer and isolved relating to the subject matter of this Agreement.
Amendment; Waiver. This Agreement cannot be altered, amended, or modified except in writing executed by an authorized representative of each Party. The waiver of, or failure to exercise, any right under this Agreement will not be deemed a waiver of any other right hereunder, or of any other or further breach or failure of performance of the other Party.
Choice of Law. This Agreement and its subject matter will be construed and enforced in accordance with the laws of the State of North Carolina without regard for its choice of law provisions. The Parties agree to submit to the exclusive jurisdiction of the state or federal courts located in Mecklenburg County, North Carolina.
Attorney's Fees and Court Costs. In the event any proceedings, arbitration or legal action is brought by either Party against the other arising out of or in connection with this Agreement, the prevailing Party will be entitled to recover its costs and reasonable attorney's fees. If any provision of the Agreement is held invalid or unenforceable by any court or agency of competent jurisdiction, it will be severed, and the remaining terms of the Agreement shall remain in full force and effect.
Assignment. isolved will have the right to assign its rights under this Agreement to any third party provided isolved gives written notice to Employer of such proposed assignment at least sixty (60) days prior to such assignment taking effect. Employer may not assign any of its rights under this Agreement to any third party without the prior written consent of isolved. For purposes hereof, a change in control of more than 50% of Employer's equity ownership (or its parent corporation's ownership), whether by merger, sale of equity securities or otherwise, will constitute an assignment of this Agreement by Employer. isolved may assign any or all of its rights under this Agreement to any affiliate of isolved without prior notice.
Relationship of Parties. isolved is an independent contractor and not an employee, partner or agent of Employer, and the employees of Employer are not entitled to any of the benefits of employment granted by isolved to its own employees. isolved is not the Plan Administrator or a Plan Fiduciary of the Benefit Plans, as those terms are defined in ERISA. It is understood that isolved is free to perform similar services for other employers while this Agreement is effective. Employer understands and hereby agrees that it will not represent to any third party that it is an employee or agent of isolved. Employer will have no authority to enter into any contract on behalf of isolved without the express prior written consent of isolved. Employer will not have any right or authority to make any representations or warranties or to assume or create any obligations or responsibilities, express or implied, regarding the Service to any third party unless authorized in writing by isolved, or to bind isolved in any way, except as expressly isolved forth in this Agreement.
Non-Disparagement. During the Term and for a period of eighteen (18) months thereafter, neither Party hereto will make or publish any statement (orally or in writing) or assist or participate in the making or publication of any statement, which is intended to disparage the other Party or the Service or that would libel or slander or cause material disparagement to the other Party or any of its past or present directors, officers, employees, shareholders or agents or the Service. Notwithstanding the foregoing, nothing in this section will prohibit either Party from making allegations against the other Party in any claim of breach of this Agreement in a court of law.
Counterparts; Binding Effect. This Agreement may be executed in several counterparts, each of which may be deemed an original, and all of which taken together will constitute one single agreement between the Parties with the same effect as if all the signatures were upon the same instrument. This Agreement will bind and inure to the benefit of the Parties, their respective successors, and permitted assigns. An electronic or scanned .pdf signature will have the same force and effect as an original.
Severability. If any provision of this Agreement is held invalid or unenforceable by any court or agency of competent jurisdiction, it will be severed and the remaining terms of this Agreement will be interpreted in such a way as to give maximum validity and enforceability to this Agreement.
Third Party Beneficiaries. Nothing in this Agreement creates, or will be deemed to create, third party beneficiaries of or under this Agreement. isolved has no obligation to any third party (including, without limitation, Employer's employees and/or any taxing authorities) by virtue of this Agreement.
Force Majeure. Any Party hereto will be excused from performance under this Agreement for any period of time that the Party is prevented from performing its obligation hereunder as a result of an act of God, war, earthquake, civil disobedience, court order, labor dispute, or other cause beyond the Party's reasonable control.
Notices. Any notice required or permitted to be given hereunder will be deemed given the day following the date of the postmark thereof if sent prepaid certified or registered mail, return receipt requested or by confirmed facsimile, or by commercial overnight delivery service. Until either Party advises the other Party of a change in how notices will be addressed, all notices pursuant to this Agreement will be addressed to the address of the Parties shown on the signature page to this Agreement.
EXHIBIT A
DEFINITIONS
"Affiliate" means, when used with respect to a Party, any partnership, corporation, limited liability company or other legal entity that either directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the specified Party. The term "control" (including the terms "controlled by" and "under common control with") means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Party, whether through the ownership of voting securities, by contract or otherwise.
"Confidential Information" means non-public information regarding a Party's business, including but not limited to sales and marketing plans and strategies, future product and service plans, price lists, financial and business information, trade secrets, customer lists, financial plans and data, balance sheet information, customer information, hardware, software, or product information, including any and all software of isolved, non-public isolved Product information, and the terms of this Agreement will be deemed Confidential Information; provided however, the term Confidential Information will not include information which (a) is inputted or submitted by Employer or any User in the Service, (b) becomes generally available to the public in any manner or form through no fault of the Recipient or its employees, independent contractors, agents or representatives, (c) is independently known or developed by Recipient without benefit of the Confidential Information, (d) is rightfully received from another source on a non-confidential basis, or (e) is released for disclosure with the Disclosing Party's prior written consent.
“Direct Competitor” means a third party (other than an Affiliate of Employer) that is engaged in the business of providing human capital management services or solutions to employers, including but not limited to payroll, tax filing, COBRA or other benefit administration services.
"Documentation" means the online help documentation for the Service.
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
"Marks" will mean such Party's name, trademarks, service marks, trade dress, tradenames, brand names, designs, logos or corporate names, whether registered or unregistered and all goodwill associated therewith.
“Parties” means collectively Employer and isolved, and each is a “Party.”
"Service" means the services and functionalities provided by isolved to its customers through the hosted, on-demand, cloud-based isolved® platform, including any and all updates thereto from time to time.
"Users" means Employer's employees, agents, contractors, consultants or other individuals who reasonably have a need to access the Service and are authorized by Employer (subject to approval by isolved) to use the Service on Employer's behalf.
CONFIDENTIAL