This Service Agreement (“Agreement”) is entered into between Hourly, Inc., a Delaware Corporation (“Company”), and Customer’s Company (“Customer”).
Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services outlined (“Services”) in the corresponding Pricing Plan (“Plan”), Platinum or Gold, chosen by Customer. Further, Company will provide Customer with reasonable technical support services (“Technical Support”).
Hourly may incorporate services that are provided by another party, including, but not limited to, its banking provider, SouthState Bank (the “Processor Account”) which transfers funds through the Automated Clearing House (“ACH”) to the payee (e.g., Employee or tax agency) pursuant to an Authorization Agreement between Hourly and the Processor Account.
Upon notice from the Employer, Hourly will send instructions to the Processor Account to distribute wages and/or tax payments to the appropriate employees and/or government agencies. The distribution occurs by Hourly communicating a debit or credit ACH transfer from the Processor Account directly to the affiliated Employee bank account. In the event that an employer wishes to pay the employee with a live paper check, the amount of the check will be excluded from the transaction, and a check drawn upon the employer’s Processor Account will be issued to the employee.
Hourly will calculate the Employer’s tax liability owed to federal and state tax authorities in the manner identified by the relevant tax authority and the Employer. Upon submission of the payroll run by the employer, Hourly will send disbursement instructions to the Processor Account outlining the payroll and tax payments to be debited from the employer’s Processor Account. Of particular relevance, Hourly will never hold employers’ payroll funds, those funds are held and distributed from the Processor Account.
The customer is in a contractual relationship with Hourly, and not with any third-party service providers.
Customer shall not, (directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how, or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company in writing); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.
Customer represents, covenants, and warrants that Customer shall use the Services only in compliance with all applicable laws and regulations. Further, Customer shall not remove or export from the United States, or allow the export or reexport of, the Services, Software or anything related to the Services or Software, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury, Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014 (a) (1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
Customer understands that Customer is responsible for the accuracy and completeness of all information necessary for Company to provide the Services. Further, Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Services, including but not limited to, modems, hardware, servers, software, operating systems, networking, web servers, and the like (“Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, and files, and for all uses of Customer account or the Equipment, with or without Customer’s knowledge or consent.
Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services Company believes may be, or alleged to be, in violation of the terms of this Agreement or any applicable laws or regulations.
Each party (“Receiving Party”) understands that the other party (“Disclosing Party”) has disclosed or may disclose business, technical, or financial information relating to the Disclosing Party’s business (“Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality, and performance of the Services. Proprietary Information of Customer includes nonpublic data provided by Customer to Company to enable the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted by the terms of this Agreement) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure or any information that the Receiving Party can document (a) is or becomes generally available to the public, (b) was in its possession or known by it prior to receipt from the Disclosing Party, (c) was rightfully disclosed to it without restriction by a third party, (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
Company shall own and retain all right, title, and interest in and to (a) the Services and Software, including all improvements, enhancements, or modifications, (b) any software, applications, inventions, or other technology developed in connection with the Services or support, and (c) all intellectual property rights related to any of the foregoing. No rights or licenses are granted except as expressly set forth in the terms of this Agreement.
Under no circumstances shall Company sell Customer Data. Notwithstanding anything to the contrary, Company shall have the right collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived from Customer Data), and Company will be free to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. Further, Company may share Customer Data with affiliates and third-party partners as necessary to perform the Services.
Subject to the terms of this Agreement, Company shall provide Services to Customer with the purpose of: (a) calculating payroll and its associated liabilities, (b) processing payroll and making related payroll payments, and (c) making certain payroll tax payments and payroll tax filings. Company’s third-party provider will be responsible for certain activities relating to the Services, including (1) withholding, filing, and remitting payroll tax payments and filings and (2) remitting certain wage garnishments on behalf of Customer to local, state, or federal agencies.
Prior to Customer’s first payroll processing date, Customer must submit the completed and executed documents Company requires to provide the Services, including Customer’s payroll and
bank account information, any required powers of attorney, and any additional information as requested by Company. Customer shall review all related information (“Payroll Information”) for completeness and accuracy prior to each payroll. Customer must immediately correct or provide any missing Payroll Information upon Customer realizing the mistake. Further, Customer is fully responsible for the accuracy of all information Customer provides, submits, or approves, and Customer is solely responsible for any Claims, including but not limited to, IRS penalties or interest, and other penalties or interest, arising from the failure to timely provide and maintain accurate and complete Payroll Information at all times.
In performing the Services, Customer acknowledges that (a) Company is not acting in a fiduciary capacity for Customer, (b) using the Services does not relieve Customer of Customer’s obligations under local, state, or federal laws or regulations to retain records relating to Customer’s data, and (c) any information that Company provides in connection with the Services is for informational purposes only and shall not be construed as legal, tax, or accounting advice.
In order to use the Services, Customer must submit accurate wage and Payroll Information to Company during and after Onboarding. Company will not be liable for any penalty, interest, or other Claim that results from inaccurate or incomplete information that Customer supplies. Customer shall timely and accurately update all wage and Payroll Information as necessary to reflect changes and respond with additional information, as may be requested from time to time by Company.
Customer understands and acknowledges that once Payroll is submitted by Customer, payments are timely made by a third-party provider to the corresponding Tax Agencies. Neither the Company, nor the third-party provider is obligated to correct any mistakes related to the transaction. In the case of a mistake in payment due to information provided by Customer, the Tax Agency(ies) will not return payment(s) to Customer. The only method of correction is a filed return, which will typically result in a tax refund. Once a corrected tax return has been filed, it is Customer’s sole responsibility to claim the actual refund from the Agency(ies). Please note, if Customer owes other monies to government agencies, refunds may be forfeited by other government agencies.
Prior to Quarter End: To remove any doubt – Company has no obligation to correct any mistake with the Tax Agency(ies) as a result of incorrect or incomplete information submitted by Customer. Company may, in its sole and absolute discretion, assist Customer in correcting a mistake as long as Customer has communicated the mistake to Company prior to the end of the Quarter in which the mistake occurred and, in any event, no later than the 5th of the month immediately following the end of the Quarter.
After Quarter End: If the mistake occurred in a Quarter that has ended, and the additional grace period has likewise ended, Company may still, in its sole and absolute discretion, choose to assist Customer with this process. The assistance from Company will incur an extra minimum fee of $250 for each corrected federal tax return and $350 for each corrected state tax return that requires refiling. The applicable fee will be added to Customer’s regular monthly billing.
Customer acknowledges that Customer has had an opportunity to review, and agrees to comply with, and be bound by, the NACHA Rules. Customer acknowledges that Customer is the Originator (as defined in the NACHA Rules) of each Entry and assumes the responsibilities of an Originator under the NACHA Rules. Customer explicitly acknowledges that all ACH Entries comply with U.S. Laws. Upon submission of payroll by Customer, Company will be notified to disburse funds. After Company receives notice from Customer, Company will send instructions to the bank (“Processing Bank”), outlining the payroll and tax payments to be debited from Customer’s account, to distribute wages and tax payments to the appropriate employees and government agencies. Customer understands that it is Customer’s responsibility to retain records of all Direct Deposit Authorization Forms signed by employees of Customer (“Employee(s)”).
Customer provides authorization for payroll fees to be debited from Customer’s account. Further, Customer hereby authorizes Company to initiate debit entries to its bank account and, if necessary, initiate adjustments for any transactions credited or debited in error. This authority will remain in effect until the Customer provides written notice to Company cancelling authority, affording the Company and the financial institution a reasonable opportunity to act upon the notice.
Customer further acknowledges that under the NACHA Rules, Company, as a Third-Party Sender (as defined in the NACHA Rules), is required to make certain warranties on behalf of the Originator with respect to each Entry. Customer agrees to indemnify Company for any Claim which results, directly or indirectly, from a breach of such a warranty made by Company on behalf of Customer, unless such breach results solely from Company’s own gross negligence or intentional misconduct. Customer acknowledges that Company, as the Third-Party Sender, has the right to terminate, suspend or audit Customer, as the Originator.
Customer must choose a Plan, either Platinum or Gold, prior to starting payroll with Company. Customer shall pay Company the applicable fees (“Fees”) for the Services in accordance with the chosen Plan. Company reserves the right to change the Fees in Company’s sole discretion. In the event of a change in Fees, notice will be provided to Customer. If Customer is not agreeable to the change in Fees, written notice must immediately be provided to Company. Continued use of the Services by Customer implies acceptance of the change in Fees. Notwithstanding the foregoing, if Customer’s Plan has an approved discount (“Discount”), the Discount will remain in full force and effect. If Customer believes that Company has billed Customer incorrectly, to receive an adjustment or credit: Customer must contact Company no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared.
Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of the Services. Further, if the Fees are returned and remain unpaid, the Services may be suspended or placed on hold, at Company’s sole discretion.
Company may modify the terms of the Agreement at any time, in Company’s sole discretion. If Company does so, Company will notify Customer either by posting the modified Agreement on the Company’s Website or through other communications. If Customer continues to use the Services after Company has notified Customer of the modifications, Customer is indicating to Company that Customer agrees to be bound by the terms of the modified Agreement. If Customer does not agree to be bound by the terms of the modified Agreement, Customer shall notify Company in writing immediately and shall not continue to use the Services. Because the Services are evolving over time, Company may change or discontinue all or any part of the Services at any time, at Company’s sole discretion.
Either party may terminate the Agreement at any time upon providing thirty (30) days notice in writing to the other party. Company shall have the right to terminate the Agreement immediately in the event that: (i) Company has any reason to suspect or believe that Customer may be in violation of this Agreement; (ii) Company determines that Customer’s actions are likely to cause legal liability for or material negative impact to Company; (iii) Company believes that Customer has misrepresented any data or information or that Customer has engaged in fraudulent or deceptive practices or illegal activities; (iv) Company has determined that Customer is behind in payment of fees for the Services and Customer has not cured such non-payment within five (5) days of Company providing Customer with notice of the non-payment; or (v) Customer files a petition under the U.S. Bankruptcy Code or a similar state or federal law, or a petition under the
U.S. Bankruptcy Code or a similar state or federal law is filed against Customer. Upon termination of the Agreement, Customer shall pay in full for the Services up to and including the last day on which the Services are provided.
All sections of this Agreement which by their nature should survive termination of the Agreement shall survive termination, including but not limited to, rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors in the Services and shall perform the Services in a professional and workmanlike manner. Company makes no representations or warranties about the availability of the Services. From time to time, scheduled system maintenance or emergency maintenance may occur, and during such maintenance periods, the Services may be inaccessible and unavailable, with or without notice to Customer. Company will use reasonable efforts to provide advance notice in writing of any scheduled service disruption. Company does not make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
Notwithstanding anything to the contrary, except for bodily injury of a person, Company and its officers, affiliates, representatives, contractors, and employees shall not be responsible or liable with respect to any subject matter of this Agreement under any contract, negligence, strict liability, or other theory: (a) for error or interruption of use, loss or inaccuracy or corruption of data, cost of procurement of substitute goods, services or technology, or loss of business; (b) for any indirect, exemplary, incidental, special, or consequential damages; (c) for any matter beyond Company’s reasonable control; or (d) for any amounts that, together with amounts associated with all other claims, exceed the Fees paid by Customer to Company for the Services under this Agreement in the three (3) months prior to the act that gave rise to the liability, in each case, whether or not Company has been advised of the possibility of such damages.
Customer shall indemnify and hold harmless Company and its officers, directors, employees, and agents (“Indemnified Parties”), from and against any claims, disputes, demands, liabilities, damages, losses, costs, judgements, penalties, fines, and expenses (including, without limitation, reasonable legal and accounting fees) (collectively, the “Claims”), arising out of or in any way connected with (i) Customer’s access to or use of the Services; (ii) Customer content; (iii) Customer’s violation or alleged violation of this Agreement; (iv) Customer’s violation or alleged violation of any third party right, including without limitation any right of privacy or publicity, or any right provided by any labor or employment law, rule or regulation, or any intellectual property right; (v) Customer’s violation or alleged violation of any applicable law, rule, or regulation, including but not limited to wage and hour laws; (vi) Customer’s violation of the NACHA Rules;
(vii) Customer’s gross negligence, fraudulent activity, or willful misconduct; (viii) Company’s or any other Indemnified Party’s use of or reliance on information or data furnished by Customer in
providing the Services, or otherwise in connection with this Agreement; (ix) actions or activities that Company or any other Indemnified Party undertakes in connection with the Services or this Agreement at the direct request or instruction of anyone that Company or any other Indemnified Party reasonably believes to be Customer (“Requested Action”); (x) Company’s or any other Indemnified Party’s use of or reliance on information or data resulting from such Requested Actions; or (xi) Customer’s failure to properly follow Company’s instructions with respect to the Services.
Company is not responsible or liable for any delays or failures in performance from any cause beyond Company’s control, including but not limited to, acts of God, changes to laws or regulations, embargoes, wars, terrorist acts, acts or omissions of third-party technology providers, riots, fires, earthquakes, floods, power outages, strikes, weather conditions, acts of hackers, acts of internet service providers, acts of any other third party, or acts or omissions of Customer.
If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable, or sub- licensable by Customer, except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under the Agreement without Customer’s consent. The Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of the Agreement. Further, no agency, partnership, joint venture, or employment is created by the terms of the Agreement and Customer does not have authority of any kind to bind Company in any respect.
This Agreement shall be governed by the laws of the State of California, without regard to its conflict of laws provisions. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. Customer waives the right to enforce rights under this Agreement in the form of a class action and shall solely pursue any action in an individual capacity. Further, both parties hereby and unequivocally waive the right to a jury trial.
Company will provide Technical Support to Customer via both telephone and electronic mail on weekdays during the hours of 9:00 am through 5:00 pm Pacific time, with the exclusion of Federal Holidays (“Support Hours”).
Customer may initiate a help desk ticket during Support Hours by calling (844) 800-2211 or any time by emailing email@example.com Company will use commercially reasonable efforts to respond to all Helpdesk tickets within one (1) business day.
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