isolved Lite Terms and Conditions
Terms and Conditions
These Terms and Conditions (“Terms and Conditions”) are incorporated into the Order Form(s) (the “Order Form”) and are an integral part of the Agreement between Employer and isolved.
Definitions: Capitalized terms not otherwise defined herein are defined on Exhibit A.
Services; Access Rights
Services. isolved shall provide the Services to Employer for the applicable Subscription Term and in accordance with the applicable Order Form s and Documentation.
Access Rights. To the extent isolved determines necessary to provide the Services set forth in the Order Form, isolved grants to Employer a non - exclusive right to access the features and functions of the Software applicable to the Services during the Subscription Term for such Services. Access and use of the Software by Employer is limited solely to use of the Services for processing internal data of Employer and its Affiliates. Employer will access and use the Software 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 not, and will cause the Users not to, without the prior consent of isolved: (a) resell, sublicense, lease, time-shar e or otherwise make the Service available to any third party (other than its Affiliates); (b) send or store infringing or unlawful material; (c) send or store Malicious Code; (d) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Service or the data contained therein; (e) 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; (f) use the Service, or permit it to be used, for purposes of product evaluation, benchmarking or other comparative analysis intended for publication; (g) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software com ponent of the Service is com piled or interpreted , and Employer acknowledges that nothing in the Agreement will be construe d to grant Employer any right to obtain or use such source code; or (h) copy or modify any software component of the Software or the Documentation, or create any derivative work from any of the foregoing. Employer acknowledges that there are no licenses granted by implication under the 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 Service and the Documentation. The Parties acknowledge and agree that the Agreement contemplates access and use rights with respect to the Service and no software is being provided and no licenses with regard to any software are being granted under the Agreement.
Subscription Term & Termination
Term of Agreement. The e Agreement shall become effective on the “Effective Date” and shall continue until the expiration of the Initial Term set forth in the Order Form (or if no Initial Term is listed, the third anniversary of the Effective Date) (the “Initial Term”); provided that the Agreement shall automatically renew annually for separate but successive one (1) year term s (each a “Renewal Term,” and together with the Initial Term, the “Subscription Term”), unless and until terminated as follows:
at the end of the Initial Term or any Renewal Term by either Party upon written notice to the other Party received not less than sixty (60) days prior to the expiration of any such;
by either Party upon thirty (30) days prior written notice to the other Party of a material breach of the Agreement by the other Party if such breach remains uncured at the expiration of such period;
by isolved if (i) Employer fails to timely pay any Fees or other amounts due to isolved under the Agreement and such failure continues for five (5) business days after isolved notifies Employer in writing of its intent to terminate as a result thereof, or (ii) Employer’s right to receive any Services subscribed to by Employer are suspended (each a “Suspension of Service”) due to Employer’s failure to meet the eligibility requirements for such Services set forth in the applicable Service Terms or the published Eligibility Requirements at Exhibit B hereto as of such date and such Suspension of Service (A) continue s for a period of more than thirty (30) consecutive days or (B) if Suspension of Service is cured within such period, a Suspension of Service occurs more than once in any twelve (12) month period.
Early Termination with Fee. In addition to the rights set forth in Section 3. 1, Employer may terminate the Agreement at any time, upon thirty (30) days written notice and payment of the Early Termination Fee. For the avoidance of doubt the Early Termination Fee shall not be payable if Employer terminate s the Agreement by delivery of a notice of nonrenewal pursuant to Section 3. 1(a) or in connection with a material breach of this Agreement by isolved pursuant to Section 3.1(b) hereof. The “Early Termination Fee” shall be an amount equal to (i) the average Fees incurred by Employer during the three (3) months immediately prior to such termination, subject to any minimum fees stated in the Order Form, multiplied by (ii) the number of months remaining in such then current Initial Term or Renewal Term. The Early Termination Fee shall be invoiced to Employer in one (1) lump sum and shall become due and payable via ACH from Employer’s account, wire transfer, or check, no earlier than the third business day after the date of invoice. The Parties acknowledge and agree that the Fees being agreed to under this Agreement are based on the number of anticipated employees of Employer processed using the Services for the duration of the Subscription Term and that isolved would suffer damages caused by Employer’s termination of the Agreement or discontinuance of use of the Services prior to the end of the Subscription Term, which otherwise would be difficult to accurately estimate. As a result, the Early Termination Fee shall also be payable upon written notice from isolved, if Employer discontinue s use of the Service for its (or its Affiliates that receive Services) employees during the Subscription Term and such discontinued use continues for a period of thirty (30) consecutive days after receipt of such written notice. The Parties further agree that the Early Termination Fee is a reasonable estimate of the anticipated or actual harm that might arise from Employer’s early termination of this Agreement or use of the Service. The Parties further acknowledge and agree that the Early Termination Fee constitutes compensation, and not a penalty.
Survival. In the event of termination of the Agreement for any reason, this Section 3. 3 (Survival), Section 5 (Representations, Warranties, and Disclaimers), Section 6. 1 (Marks), Section 7 (Fees & Additional Products), Section 8 (Indemnification ), Section 9 (Confidentiality and Data Privacy), Section 10 (Limitation of Liability), Section 11 (Miscellaneous), and any other term s that pursuant to their term s survive the termination of the Agreement, will survive termination of this Agreement.
Additional Service Terms
Accuracy of Employer Information and Review of Data. Employer acknowledges that the Services will be provided based upon information provided to isolved by Employer and its Users either through the Software or otherwise. The Software makes available to Employer and isolved may deliver to Employer or its Affiliates reports (including, to the extent applicable, payroll reports, employee earnings statements, deduction disbursement records and benefits reports) (collectively “Reports”). Employer agrees to promptly review all Reports and timely notify isolved of any irregularities, errors, or incorrect information. Employer acknowledges that certain Reports are used by isolved as the basis for initiating wires (including payroll and tax filing) and prompt notice may require notice to isolved within twenty-four (24) hours of User’s submission of applicable information to the Software or isolved (depending on the date of submission and wiring deadlines).
Employer Use of the Service Regarding Compliance with Laws. The Services are designed to assist Employer in complying with applicable laws including governmental regulations. Nevertheless, Employer (and not isolved) will be responsible for compliance by Employer with all applicable law, including all statutes and regulations, related to the operation of Employer’s business, including any and all direct or indirectly applicable privacy and security laws related to any data, information or records (including protection of biometric data) under the direct or indirect control of Employer or its Affiliates, as well as the payment of all salary and wages to employees and related taxes in accordance with applicable law. Employer will not rely solely on its use of the Service in complying with any laws and governmental regulations, including but not limited to any privacy, security, employment, wage and hour or tax laws or governmental regulations. Employer shall not transmit to isolved any personally identifiable information of an individual who is a resident of the European Union.
Fraudulent Activity. Employer acknowledges and agrees that it, and not isolved, is responsible for the security and privacy of its systems and assets, including bank and financial services accounts, email accounts and databases. isolved will not be liable for any criminal or unlawful activity originating with or derived from Employer’s systems, premises, property or databases, including but not limited to: fraud (including but not limited to fraudulently induced instructions relative to the Services), acts of deception, impersonation, theft, larceny, embezzlement, forgery, money laundering, computer or software hacking or phishing.
Representations, Warranties, and Disclaimers
Mutual Representations and Warranties. Each Party represents and warrants to the other, that such Party has the power and authority to execute and deliver the Agreement and to perform its obligations under the Agreement, has duly executed and delivered the Agreement and that assuming due execution by the other Party, the Agreement constitutes the legal, valid and binding obligation of such Party enforceable against it in accordance with its terms.
Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THE AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICA B LE LAW, THE SERVICES, THE DOCUMENT A TI ON, AND ALL SERVICES PERFORM ED BY ISOLVED UNDER THE AGREEMEN T ARE PROVIDED “ AS IS, ” AND ISOLVED HEREBY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE INCLUDING COMPLIANCE WITH ANY LAW OR GOVERNMENTAL REGULATION AND ISOLVED DOES NOT WARRANT THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.
Additional Disclaimers. Employer acknowledges and agrees that (a) 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; (b) certain Services m ay be provided by third parties, other than isolved and its Affiliates, and isolved will not be liable for Services provided by any such third parties that Employer directly contracts with for such portion of the Services; and (c) certain Services require certain power of attorney, ACH or other authorizations of Employer in favor of isolved and its Affiliates and the execution and delivery of such will be a condition to any isolved obligation to provide such Services. Employer acknowledges they, and not isolved, are responsible for receiving direct deposit authorization from its Employees.
Insurance. Employer shall at all times maintain errors and omissions, crime, cyber and general liability insurance in the aggregate amount equal to or exceeding $1,000,000.00. Upon the reasonable request of isolved, Employer shall provide proof of such insurance to isolved.
Intellectual Property
Marks. Each Party acknowledges and agrees that the Marks of the other Party and its Affiliates (including but not limited to, with respect to isolved, isolved® and all messaging and branding, in existence now or in the future, related to the Services) are exclusively owned by such other Party and such other Party retains all right, title and interest in and to all proprietary rights in such Marks and grants no rights therein other than as expressly granted under the Agreement. Each Party grants to the other Party a revocable, non-exclusive, nontransferable, royalty-free license, with no right to sublicense, to use such Party’s Marks for the sole purpose of providing the Service, marketing and selling access to the Services (including to employees of Employer and other third parties, which rights expressly permit isolved to list Employer’s logos and information on its website) provided, that such use is in conformance with such Party’s trademark and branding policies in place from time to time (which each Party agrees to make available upon request). All goodwill from the use of a Party’s Marks will inure solely to such Party.
Infringement. isolved will defend, indemnify, and hold Employer, its directors, officers, employees, shareholders, members, and affiliated companies (the “Employer Indemnitees”) harmless from and against any Claims made or brought against Employer Indemnitees by a third party alleging that the use of any isolved Software or the Services as contemplated under the Agreement and in the applicable Documentation infringes on the U. S. intellectual property rights of a third party (“IP Rights”). isolved may, at its sole option and expense: (a) procure for Employer the right to continue using the Service under the terms of the Agreement; or (b) replace or modify the Service to be non-infringing without material decrease in functionality. Notwithstanding the provisions of this Section 6. 2, isolved assumes no liability for infringement claims arising from (x) the combination of any Software or Services with products not provided by isolved, (y) any modification to the isolved Software or Services unless such modification was made by isolved or at the written direction of isolved, or (z) use of the Software not in accordance with the applicable Documentation. THE PROVISIONS OF THIS SECTION 6.2 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF ISOLVED, AND THE EXCLUSIVE REMEDY OF EMPLOYER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENTRIGHT, COPYRIGHT, TRADE SECRET, TRADEMARK OR OTHER IP RIGHT.
Fees & Additional Products
Fees. Employer will timely pay any and all Fees, plus any applicable taxes, calculated in accordance with the applicable Order Form, Statement of Work, Employer agrees to pay fifty percent (50%) of the implementation fees via ACH or wire within ten (10) business days of signing this Agreement and prior to the start of implementation, and implementation shall only begin once those funds have cleared. Additional Fees or Service Term s as applicable, or as commensurate with the then prevailing isolved rates at the time for such Services, and for the specifications, number of employees, volumes or quantities at the then prevailing Fees for such Services. isolved may increase Fees after the first twelve (12) months of the initial term, not to exceed five percent (5%) per year. Unless specifically set forth in the Order Form or Statement of Work, Employer authorizes isolved to withdraw via bank draft the amount due on all invoices on or after the due date set forth on such invoice. Employer acknowledges that certain invoices may be delivered by making available to Employer via the Software. Upon written notice to Employer, isolved may charge Employer interest at the rate of 1. 5% per month (or the maximum allowed by law if less) on any past due amounts from the due date thereof until the payment date. 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).
Expenses. Employer shall reimburse isolved (in the month immediately following the month in which the applicable Fees and expenses are incurred) for all reasonable fees and expense s incurred by isolved pursuant to the isolved Travel and Expense policy, in effect from time to time.
Additional Fees. Employer agrees to pay to isolved any additional fees (“Additional Fees”) in accordance with the isolved published Additional Fee Schedule in effect as of the date such Additional Fee is incurred. Additional Fees may include, but not limited to, fees for non - sufficient funds in an Employer account (NSF), Notification of Change (NOC) charges, wiring fees, stop payment/void check fees, check shipping fees, Employer account changes, signature or logo change fee, late payroll submission fee, zero quarterly report fees, and missing or applied for tax identification numbers.
Invoice Review. Employer agrees and acknowledges that it is its responsibility to access and review its invoices as provided through the isolved platform. Employer must notify isolved of any disputed invoice or discrepancy with charges within thirty (30) calendar days of the invoice date. Employer waives its right to dispute an invoice if it does not notify isolved within such time.
Indemnification
Mutual Indemnity. Each Party (the “Indemnifying Party”) will indemnify, defend and hold harmless the other Party (the “Indemnified Party”) and such other Party’s directors, officers, employees, shareholders, members and Affiliates from and against any claim, action, proceeding, loss, expense or damage (including reasonable attorneys’ fees) (“Claims” ) arising out of or related to: (a) any breach of any term of the Agreement by the Indemnifying Party; or (b) any breach of applicable law by the Indemnifying Party. Each Party acknowledges and agrees that it shall be liable for any act or omission of any of its Affiliates (or Affiliates’ employees, representatives or Users) that if taken by such Party would constitute a breach of the Agreement and that such Party shall take any and all reasonable actions to cause such Affiliates to comply with the covenants and obligations of the Agreement.
Additional Indemnity. Regardless of anything contained in Section 8.1, as to any Claim by a third party, including any Affiliates or past, present or future employees of Employer, Employer will indemnify, defend and hold harmless isolved and such other of isolved’s directors, officers, employees, shareholders, members and Affiliates from and against any Claims arising out of or related to: (a) any breach of any term of the Agreement by the Indemnifying Party including but not limited to the provisions of Section 4.2 herein;(b) any Claims, including those of Employer, Employees, Users or Affiliates, related to biometric information including but not limited Claims related to the improper or unlawful collection, use, storage or disposal of biometric or other protected information; (c) misrepresentations by Employer or its Affiliates, whether intentional or unintentional, related directly or indirectly to the Services, to any third party including past, present or future Employees; (d) any breach of applicable law by Employer or its Affiliates; or any Claims related to the circumstances described in Section 4.3.
Claims. The Indemnified Party will: (a) promptly notify the Indemnifying Party of any Claim for which it believes it is entitled to indemnification; (b) grant the Indemnifying Party sole control of the defense of such Claim (provided it agrees to be liable for such indemnity); and (c) provide the Indemnifying Party with assistance reasonably 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 and Data Privacy
Confidential Business Information. Either Party hereto (a “Disclosing Party”) may, from time to time during the Subscription 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 obligation s under the Agreement and will use the same degree of care it uses to protect its own Confidential Information, but no less than reasonable degree of care, to protect the Confidential Information of the other Party.
Data Privacy. isolved shall protect all Personal Information of Employer and its Users inputted or submitted into the Service using the same degree of care it uses to protect its own Confidential Information and in compliance with the isolved Data Security Addendum. In the event of an Information Security Incident isolved shall timely comply with its obligations under the isolved Data Security Addendum.
Legally Compelled Disclosure. A Party (the “Compelled Party”) will not be in breach of the Agreement by delivering some or all of the Confidential Information or Personal Information of the other Party to a court, law enforcement officials, governmental agencies or other third parties as may be required by law (such as in response to a subpoena ); provided, that, unless prevented by law, the Compelled Party notifies the other Party of any such legally required disclosure. If requested by such other Party, and if permitted by law, the Compelled Party will cooperate with the other Party, at such other Party’s expense, in seeking to limit or eliminate legal requirements that compel disclosure, or in seeking confidential treatment thereof. Upon notice to such other Party, the Compelled Party may charge the other Party third party actual and reasonable expenses incurred by the Compelled Party in connection with responding to any such legally required disclosure.
Equitable Relief. Each Party agrees that a breach of its obligations in this Section 9 may cause the other harm for which monetary damages would not be adequate compensation and agrees that, in the event of such breach, the other Party 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.
State-Specific Privacy Provisions – See State-Specific Addendum at Exhibit E.
Limitation of Liability
EXCEPT AS DESCRIBED IN SECTION 10.2, NEITHER PARTY SHALL BE LIABLE TO THE OTHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHER EQUITY THEORY) OR OTHERWIS E FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL, OR PUNITIVE DAMAGES (INCLUDIN G LOST DATA, LOST BUSINESS OR PROFITS, AND INTERRUPTION OF BUSINESS), WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE.
EXCEPT WITH RESPECT TO LOSSES RELATED TO THE CIRCUMSTANCES DESCRIBED IN SECTION 4.3, OR WITH RESPECT TO A PARTY’S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE IN CONNECTION WITH ITS OBLIGATIONS UNDER THE AGREEMENT, THE AGGREGATE LIABILITY OF A PARTY FOR ANY CLAIMS ARISING OUT OF THE AGREEMENT (INCLUDING WITH RESPECT TO PRODUCTS AND SERVICES PROVIDED) IS LIMITED TO THE TOTAL AMOUNT ACTUALLY PAYABLE TO ISOLVED DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE.
Miscellaneous
Entire Agreement. The Parties agree that the Agreement, together with the Order Form and any associated addenda, including but not limited to any applicable Service Summary, Service Terms, Statements of Work, inclusive of the exhibits thereto, made between Employer and isolved whether by execution of such documents by both Parties or incorporated by reference, as amended from time to time consistent with the terms thereof, constitutes the complete and exclusive understanding and statement of the term s and conditions relating to the Services, and constitute one single agreement between the Parties. If any conflict exists between these Terms and Conditions, the Order Form, Statement of Work or Service Terms, the terms of the Order Form, Statement of Work and Service Terms (in such order) shall control; provided, that Section 5. 2 (Disclaim er of Warranties) and Section 10 (Limitation of Liability) may only be amended upon express written reference thereto executed by the Parties. The Agreement cannot be altered, amended, or modified except in writing executed by each Party. The waiver of, or failure to exercise any rights under the Agreement will not be deemed a waiver of any right under the Agreement, except to the extent in a writing executed by such Party.
Choice of Law. The Agreement and its subject matter will be construed and enforced in accordance with the laws of the State of Delaware 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 the State of North Carolina. In the event any proceeding s, arbitration or legal action is brought by either Party against the other arising out of or in connection with the 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 notice to Employer of such assignment within sixty (60) days of such assignment. 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 fifty percent (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 m ay assign any or all of its rights under this Agreement to any affiliate of isolved without notice. 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.
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. Neither Party will have any authority to enter into any contract or other binding agreement on behalf of the other Party. Nothing in the Agreement creates or will be deemed to create third par ty beneficiaries of or under the Agreement. isolved has no obligation to Employer’s or its Affiliates’ employees or any taxing authorities related to Employer’s or its Affiliates’ business by virtue of the Agreement or provision of the Services.
Force Majeure. Any Party hereto will be excused from performance under the Agreement for any period of time that the Party is prevented from performing its obligation the Agreement as a result of an act of God, war, pandemic, earthquake, civil disobedience, court order, labor dispute, or other cause beyond the Party’s reasonable control. In the event of a change to any applicable law or regulation affecting the Services, isolved may modify the Services (the “Modified Services”) to the extent reasonably necessary to address such changes upon reasonable prior notice to Employer (which m ay include adjustment to the Service Fees applicable to the Service); provided, that Employer shall have the right to terminate the Modified Service(s) (without payment any Early Termination Fee), by delivery of written notice to isolved within thirty (30) days of the date that Employer receives notice of such Modified Services, with such termination to be effective thirty (30) days after delivery of such termination notice and during such period, the Service Fees shall remain unchanged.
Notices. Any notice required or permitted to be given under the Agreement will be deemed given the day following the date of the postmark thereof if sent prepaid certified or registered mail, return receipt requested, by commercial overnight delivery service, or by confirmed receipt through the Software or email. Until either Party advises the other Party of a change in how notices will be addressed, all notices pursuant to the Agreement will be addressed to the address of the Parties shown on the Order Form.
Administrative Corrections. To the extent that such actions do not materially impact the terms of the Agreement or the intentions of the Parties at the time the Agreement or any Documentation associated therewith was executed, the Parties agree to cooperate with each other to correct any typographical, clerical or scrivener’s error or omissions in the contents of the Documentation. The Parties agree that such corrections are intended solely to address minor errors understood by both Parties as such, and that any correction of same shall not constitute a reformation or formal amendment of the Agreement but will be acknowledged in writing by both Parties. The Parties agree that nothing in this Section shall modify Employer’s obligations in Section 4 or the provisions of Section 11.1 of this Agreement.
Further Assurance.
Each of the Parties hereto shall use commercially reasonable efforts to, and shall cause its respective Affiliates to use their commercially reasonable efforts to, from time to time at the request of the other Party, without any additional consideration, furnish the other Party such further information or assurances, execute and deliver such additional documents, instruments and conveyances, and take such other actions and do such other things, as may be reasonably necessary or appropriate in the opinion of counsel to the requesting Party to carry out the provisions of this Agreement.
On an annual basis and whenever reasonable grounds for insecurity arise with respect to the compliance provisions or representations herein made by Employer or related to any of its affiliates, isolved may in writing demand adequate assurance of compliance with the law and eligibility of Users, and until such assurance is received by isolved, it may, if commercially reasonable, suspend its performance hereunder, and such suspension shall not be considered a breach by isolved of 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 com m on 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.
“Agreement” means these Terms and Conditions, together with the Order Form and any associated Exhibits and Addenda, including but not limited to any Service Summary, Service Terms, Statements of Work, inclusive of the exhibits thereto, made between Employer and isolved whether by execution of such document by both Parties or incorporated by reference, as amended from time to time consistent with the terms thereof.
“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 term s of the Agreement will be deemed Confidential Information; provided however, that the term Confidential Information will not include information which (a) constitutes Personal Information inputted or submitted by Employer or any User in the Service (which Personal Information shall be secured and governed by Section 9), (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, (e) is released for disclosure with the Disclosing Party’ s prior written consent and (f) deidentified or aggregated information.
“Customer” or “customer” means the counterparty to an Agreement or Documentation with isolved. See also definition for Employer herein.
“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 documentation for the Service.
“Effective Date” means the date the Order Form is executed by Employer and isolved or, if stated, such other start date or effective date stated in the Order Form.“
Employees” means employees, contractors, consultants or other individuals, end users or Users of Services as provided to Employer and related to this Agreement and the Documentation.“Employer” refers to the custom er in receipt of the Services identified in the Agreement and Documentation.
“Equipment” refers to any hardware or device provided by isolved to Employer for use relative to the Services, including but not limited to, time clocks.
“Fees” means, collectively, any Service Fees, Additional Fees, or any other fees due under the Agreement.
“InformationSecurityIncident” means unauthorize d access to and acquisition of unencrypted or unredacted Personal Information.
“isolved” the isolved entity that has signed the Agreement.
“isolvedDataSecurityAddendum” means the isolved Data Security Addendum available at Exhibit C.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Marks” means a Party’s names, trademarks, service marks, trade dresses, 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.”“Personal Information” means information that identifies a particular individual and the storage, use and protection of such information is protected by applicable law. “Personal Information” does not include encrypted, deidentified or aggregated information.
“Service” or “Services” means the services and functionalities provided by isolved to its customers through the hosted, on-dem and, cloud-based isolved ® platform, which may include Time and Attendance applications if applicable, and including any and all updates thereto from time to time.
“Service Terms” means the version of service terms for any portion of the Services, as made publicly available at https://www.isolvedhcm.com/legal/agreements/terms-and-conditions from time to time.
“Software” means any software program (s) licensed or provided by isolved to Employer through which the Service will be provided, including but not limited to the isolved® hosted service, as such Software may be more particularly described in the Order Form or applicable Statement of Work.
“Statement of Work” means any Statement of Work between Employer and isolved, setting forth in detail the work, services, and deliverables to be provided by isolved in respect of any professional services work.
“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.
Exhibit B
Eligibility Requirements
Eligibility Requirements as described in the Terms and Conditions and mentioned elsewhere in the Agreement or Documentation refers to actual and discretionary criteria that renders the provision of Services to Employer possible, ethical and commercially reasonable. Services are available only for as long as Employer and Users meets the isolved Eligibility Requirements. Those Eligibility Requirements include, but are not limited to:
Employer is not seeking Services outside the United States.
Users are not outside the United States.
Neither Employer nor or its affiliates are engaged, directly or indirectly, in a business, enterprise or other acts or omissions that would limit banking or other regulated service part of or ancillary to the isolved Services described in the Agreement. Such businesses or enterprises may include, but are not limited to, cannabis related businesses (also known as “CRB”) or certain gambling.
Neither Employer nor its affiliates are engaged in a business, enterprise or other acts or omissions that might jeopardize relationships isolved has with third parties. Such activities could include, but are not limited to, criminal enterprises, which could result in loss of business to isolved, irreparable reputational harm to isolved or loss of critical vendor relationships.
Should the nature or any specific aspect of these Eligibility Requirements materially change, isolved will inform Employer as soon as practicable. For the avoidance of doubt, Eligibility Requirements may be updated without prior notice to Employer.
Exhibit C
isolved Data Security Addendum
This isolved Data Security Addendum governs isolved data privacy and security obligations in connection with any Personal Information of Employer that may be in isolved custody or under isolved control during performance of the Service.
Information Security Measures
Compliance with Laws. isolved will use commercially reasonable efforts to com ply with applicable data privacy and data security laws.
Security Standards. isolved has and will maintain commercially reasonable technical and organizational measures designed to (a) provide for the security of Employer’s Personal Information in isolved custody or under the control of isolved and (b) ensure the ongoing confidentiality, integrity, and availability of processing system s and the Service. Such measures include procedure s to protect the confidentiality, security, and integrity of Personal Information and to detect and respond to Information Security Incidents. isolved may undertake such measures as reasonably appropriate: (i) implement access controls to Personal Information systems, including controls to identify and perm it access only to authorized individuals and controls designed to prevent access to Personal Information through fraudulent means; (ii) implement employee training program s and background checks; (iii) implement encryption of Personal Information when reasonably necessary and (iv) implement commercially reasonable disaster recovery and business continuity process and procedures.
Disclosure. isolved will limit access to Personal Information to persons who, in the reasonable discretion of isolved, have a need to know the Personal Information in connection with performance by isolved of the Service. Nothing in this isolved Data Security Addendum shall limit the ability of isolved to make disclosure s reasonably required or helpful for (i) compliance by isolved with law; (ii) establishing or maintaining a legal claim or defense; (iii) responding to a government or other regulatory inquiry; (iv) obtaining or establishing an insurance policy or claim; or (v) as otherwise necessary to comply with this isolved Data Security Addendum.
Subcontractor Compliance. Prior to providing access to Personal Information to any third-party service provider, isolved will: (i) conduct a reasonable investigation of such third party to ensure that the third party is capable of complying with requirements regarding the privacy, confidentiality and security of Personal Information that are at least as protective of Personal Information as the requirements imposed on isolved under this isolved Data Security Addendum and (ii) contractually impose up on such a third party the same or substantially similar contractual duties imposed on isolved by this isolved Data Security Addendum.
Information Security Incident Response
Notice of Unauthorized Access to Personal Information. isolved will notify employer of any Information Security Incident as soon as reasonably practical after isolved becomes aware of the Information Security Incident, and as required by applicable law.
Incident Response Mitigation. In the event of an information Security Incident, isolved will (i) conduct a reasonable investigation of the
Information Security Incident; (ii) use commercially reasonable efforts and take actions to rectify, prevent, contain , mitigate, and remediate the Information Security Incident; (iii) take any and all steps reasonable necessary or helpful to comply with applicable privacy laws and regulations; and (iv) notwithstanding anything to the contrary in the Agreement, indemnify Employer for any expenses and costs, including, without limitation, reasonable attorney fees and costs of mitigation, that Employer may incur in connection with such Information Security Incident.
Exhibit D
Time and Attendance Applications Addendum
This addendum to the Agreement (“Time Addendum”) is applicable to isolved Time and Attendance applications named in the Order Form.
NOTICE:
EMPLOYERS USING ISOLVED TIME AND ATTENDANCE EQUIPMENT MAY WISH TO CONSULT WITH LEGAL COUNSEL TO DETERMINE WHAT OBLIGATIONS THEY MAY HAVE TO EMPLOYEES USING SUCH DEVICES. ALTHOUGH ISOLVED FERVENTLY BELIEVES THAT ITS TIME AND ATTENDANCE EQUIPMENT DOES NOT USE, COLLECT OR STORE BIOMETRIC DATA, EMPLOYER MAY WISH, OUT OF AN ABUNDANCE OF CAUTION, TO TAKE PREVENTATIVE MEASURES TO COMPLY WITH APPLICABLE LAW.
SPECIAL TERMS OF USE.
EMPLOYER AGREES TO OBTAIN INFORMED CONSENT FROM AND TO MAKE ANY AND ALL DISCLOSURES AND OF ANY KIND WHATSOEVER AS REQUIRED BY LAW TO ALL USERS OF THE TIME AND ATTENDANCE EQUIPMENT.
EMPLOYER UNDERSTANDS THAT SUCH INFORMED CONSENT, DISCLOSURES AND COMPLETE COMPLIANCE BY EMPLOYER WITH APPLICABLE LAW IS A CONDITION FOR USING TIME AND ATTENDANCE EQUIPMENT.
EMPLOYER IS SOLELY RESPONSIBLE FOR INDEPENDENTLY DEVELOPING AND IMPLEMENTING ANY AND ALL BIOMETRIC DATA AND INFORMATION CAPTURE, USE, RETENTION OR DESTRUCTION POLICIES AND PROCEDURES THAT MAY BE REQUIRED BY LAW.
EMPLOYER AGREES TO DISCLOSE TO AND INFORM ALL USERS OF THE TIME AND ATTENDANCE EQUIPMENT THAT IF FOR ANY REASON ISOLVED WERE TO RECEIVE BIOMETRIC INFORMATION, IT WOULD DELETE IT IMMEDIATELY. ISOLVED COMPLIES WITH APPLICABLE RETENTION AND DESTRUCTION REQUIREMENTS AS DEFINED BY LAW. NEITHER ISOLVED NOR THE TIME AND ATTENDANCE EQUIPMENT COLLECT, CAPTURE, POSSESS, PURCHASE, RECEIVE, OBTAIN, USE OR STORE ANY BIOMETRIC INFORMATION OR DATA DEFINED BY LAW. FURTHERMORE, ISOLVED DOES NOT SELL, LEASE, TRADE OR OTHERWISE PROFIT FROM ANY INFORMATION, BIOMETRIC OR NOT, IT MAY RECEIVE FROM EMPLOYERS.
Access Rights to Time and Attendance Applications.
Employer will have internet access to the Time and Attendance application(s) indicated in the Order Form into which the Agreement is incorporated by reference.
Employer will have access to the Time and Attendance Service, the website at which it is available (the "Website"), the software on the Website ("Software") and related materials made available as part of the Time and Attendance Service by isolved. isolved grants Employer a non-exclusive, non-transferable license, during the Term of the Agreement, to use the Time and Attendance Service for Employer’s own internal business purposes. Employer acknowledges and agrees that the Time and Attendance Service, Website, Software and materials that are made available as part of the Time and Attendance Service may be updated and changed from time to time, in the sole discretion of isolved. Employer’s continued use of the Time and Attendance Service after isolved posts any changes will constitute Employer’s acceptance of such changes.
EMPLOYER MAY NOT LEASE OR DISTRIBUTE THE SOFTWARE, ANY COPY, OR ANY RELATED WRITTEN MATERIALS IN WHOLE OR IN PART. EMPLOYER MAY NOT USE THE SOFTWARE TO CONDUCT ANY SERVICE FOR THIRD PARTIES (I.E., TO PROCESS THIRD PARTY INFORMATION THROUGH THE SOFTWARE) UNLESS SEPARATELY LICENSED TO DO SO BY ISOLVED IN WRITING. ANY USE OF THE SOFTWARE OR TIME AND ATTENDANCE EQUIPMENT, EX CEPT AS EX PRESSLY PERMITTED IN THIS AGREEMENT, MAY SUBJECT EMPLOYER TO CIVIL DAMAGES AND ATTORNEY' S FEES AND IS A CRIMINAL OFFENSE.
Biometric Information.
Some models of isolved time clocks use a touchpad feature which allows punching with the scan of a finger. In connection with these clocks, isolved does not collect, store, or share any biometric information.
Subscription Service Plan.
If Employer is subscribing to Time and Attendance Service, a Service Plan is included in the subscription Fee. If Employer is renting Time and Attendance Equipment a Service Plan is included in Employer's rental Fee. If Employer is purchasing Time and Attendance Equipment a Service Plan is not included in the purchase price of Employer's Time and Attendance Equipment; however, Employer may purchase a Service Plan for which Employer will be billed separately from the purchase price of the Time and Attendance Equipment. If Employer has a Service Plan, Employer’s rights and isolved obligations under the Service Plan shall be governed by this Section.
Technical Support. Employer will have access to isolved online support center, which contains a document library, videos, downloads and updates, and answers to frequently asked questions. Employer will have unlimited technical support Monday through Friday 6:00 am to 6:00 pm (Mountain Time) by telephone (toll free (800) 697 -7010) and email (tech@isolvedhcm.com). Employer will have unlimited technical support by chat Monday through Friday 7:30 am to 3:00 pm (Mountain Time).
Software Updates. Employer will receive all standard updates to the Software.
Time and Attendance Equipment Repair Services. If a unit of Time and Attendance Equipment becomes inoperable, isolved will repair or replace the unit as provided by this Section; provided, however, that isolved agrees to perform only those repairs involving worn or failing Time and Attendance Equipment components that have failed during ordinary use of the Time and Attendance Equipment under norm al operating conditions. isolved will first attempt to repair the unit by remote troubleshooting with the assistance of Employer’s personnel, whether by phone, email, or live chat. If a repair cannot be made remotely, Employer must ship the unit, at Employer’s sole expense, to isolved. isolved will attempt to repair the unit. If the unit cannot be repaired, isolved will replace the unit with a refurbished or new unit, at the sole discretion of isolved. The obligations of isolved under this section do not cover Excluded Repairs. "Excluded Repairs" includes repair or damage caused by accident, disaster (which includes but is not limited to fire, flood, water, wind, earth movement, and/or lightning), neglect, power transients, abuse or misuse, the failure of Employer or anyone using the Time and Attendance Equipment to follow manufacturer's published operating instructions, or unauthorized modifications or repair of Time and Attendance Equipment by persons other than authorized representatives of isolved. Nor will isolved obligations under this section include electrical work external to the Time and Attendance Equipment or maintenance of accessories, attachments, or other devices not furnished by isolved.
Purchased Time and Attendance Equipment. This section applies if Employer is purchasing Time and Attendance Equipment through the Agreement.
Transportation Charges, Title and Risk of Loss. Unless otherwise specifically accepted by isolved in writing: (a) all transportation charges shall be paid by Employer; (b) insurance charges and other applicable charges shall be borne by Employer; (c) title shall pass upon receipt of payment in full by isolved; and (d) risk of loss shall pass to Employer upon deliver y by isolved to a carrier at the ship ping point. isolved does not ordinarily, but may, if requested in writing by Employer and at Employer's sole expense, place insurance on a shipment as nearly as possible in accordance with Employer's written instruction s, but in each such case isolved acts only as agent for Employer, and isolved assumes no liability whatsoever as a result of making such insurance arrangement s.
Taxes. Unless otherwise indicated in the Agreement, all prices and charges are exclusive of excise, sales, use, property, or like taxes. If any such taxes must be paid by isolved or if isolved is liable for the collection of such tax, the amount thereof s hall be in addition to the amounts for the items sold. Employer agrees to promptly pay all such taxes or to reimburse isolved for them upon receipt of isolved's invoice. If Employer claims exemption from any sales, use or other tax, Employer shall timely provide to isolved an exemption certificate or other valid proof of exemption and shall indemnify and hold harmless isolved from and against any such tax, together with any interest or penalties thereon which may be assessed if the Time and Attendance Equipment is held to be taxable.
Maintenance and Disclaimer of Warranties. isolved is selling the Time and Attendance Equipment to Employer "AS-IS" AND isolved MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PAR TICULAR
PURPOSE. The purchase price of the Time and Attendance Equipment includes set-up and configuration assistance for a period of thirty
(30) days after Employer’s purchase of the Time and Attendance Equipment. Unless Employer purchases a Service Plan, Employer is required at Employer’s cost to keep the Time and Attendance Equipment in good working condition and to pay for all supplies and repairs. If Employer purchases a Service Plan, isolved will provide Employer with the maintenance and service included in the Service Plan as described above. If Employer purchases a maintenance or service plan from a third-party provider, Employer agrees that isolved is not responsible to provide the maintenance or service and Employer will make all claims related to maintenance and service to the third party. Employer agrees that any claims related to maintenance or service will not affect Employer’s obligation to pay all Fees when due.
Returns. ALL SALES OF TIME AND ATTENDANCE EQUIPMENT ARE FINAL. No Time and Attendance Equipment will be accepted for return without prior written approval of an executive level employee of isolved, which approval shall be in the sole discretion of i solved. All properly approved returns are subject to a restocking charge. isolved reserves the right, at its sole discretion, to refuse the return of any Time and Attendance Equipment for credit. If approval is granted, Employer agrees to pay a twenty five percent (2 5 %) restocking charge on all Time and Attendance Equipment returned; provided such returned items are in the original package or crate when received. Authorized returns must be shipped prepaid to the isolved address provided upon receipt of authorization and must be insured at the expense of the Employer. Isolved shall not be responsible for Time and Attendance Equipment damaged or lost in-transit during any return.
Resale of Time and Attendance Equipment. Employer agrees to provide isolved with a right of first refusal to re -purchase their Time and Attendance Equipment at a commercially reasonable price, to be determined completely and solely by isolved, upon the Employer’s decision to sell or dispose of any Time and Attendance Equipment purchased from isolved. If isolved chooses to not exercise the purchase right, Employer agrees to delete any and all data stored on the Time and Attendance Equipment before dispossessing itself of or disposing of the Time and Attendance Equipment. Employer, and not isolved, will be exclusively responsible for any and all loss or liability associated directly or indirectly with any claim, lawsuit, penalties or fines related to any Time and Attendance Equipment not in possession of isolved.
Any rights not expressly granted herein are reserved by isolved.
Exhibit E
California Privacy Addendum
This California Privacy Addendum (“Addendum”) is made pursuant to the terms of the California Privacy Rights Act of 2020 (“CPRA”). The following terms apply to the Agreement into which this Addendum is incorporated, as related to the data and information of California residents (“California Consumers”):
isolved does not sell personal information of California Consumers.
isolved will only share or disclose the personal information of California Consumers for the limited and specific purposes of providing the Services (as defined in the Agreement), except as required by law.
isolved will is obligated to comply with the CPRA of and will require from its service providers involved in the provision of the Services the same level of privacy protection as required by the CPRA.
Employer (as defined in the Agreement) may take reasonable and appropriate steps to help ensure that isolved uses the personal information of California Consumers in a manner consistent with the Employer’s obligations under the CPRA.
isolved must notify the Employer if isolved determines that it can no longer meet the obligations contained in Addendum and any other applicable requirements under the CPRA.
isolved grants the Employer the right to take reasonable and appropriate steps to stop and remediate unauthorized use of the personal information of California Consumers.
The isolved Privacy Policy can be found at the following link: https://www.isolvedhcm.com/privacy-policy.
CPRA resources may be found at the following link: https://oag.ca.gov/privacy/consumer-privacy-resources.
You may direct any privacy related questions or concerns to isolved at: PrivacyOffice@isolvedhcm.com or contact our Privacy Office by phone at XXXXXXXXXXXXX
CONFIDENTIAL