Payroll Service Terms and Conditions

These Terms and Conditions are part of the Payroll Service Agreement (“Agreement”) between Guidant Financial Group, Inc. (“Guidant” “we” or “us”) and the person or entity for which we are providing services (“Employer” or “you”). These Terms and Conditions are applicable to all persons who use or access the Platform and/or the Services, in their company’s capacity or in an individual capacity, including authorized users representing the Employer, its employees, or other persons using or accessing the Services (collectively “Users” and each, a “User”). If User is agreeing to these terms on behalf of a business or an individual other than User, User represents and warrants that User has authority to bind Employer or other individual to this Agreement, and User’s agreement to these terms will be treated as the agreement of Employer. In that event, “User” also refers to that business or individual. By signing the Agreement, User agrees, effective as of the date of such action, to be bound by the Agreement and the Terms and Conditions. The Service Agreement, the Terms and Conditions then in effect, are collectively referred to herein as the ”Agreement.”

1. Payroll Platform. For so long as this Agreement shall remain in effect and Employer had complied with all of the Terms and Conditions under this Agreement, Guidant shall provide Employer with access to its payroll Platform.
   
   1. Guidant shall use all commercially reasonable efforts to ensure that the Platform is up and functioning. Guidant will exercise its best commercial efforts to remedy and fix critical bugs that prevent the ability to process a payroll within 24 to 48 hours of notification.
   2. Guidant will provide Customer with all federal and state tax tables and tax deposit files/tables. Upon notification, Guidant will exercise its best commercial efforts to implement and deploy any and all tax table updates prior to their effective dates. Support will be provided for changes to electronic tax reporting requirements and changes to the forms for federal and state jurisdictions.
2. New Account Setup. During the conversion process (moving from your previous payroll system to Guidant), Guidant will load relevant employee payroll information and year-to-date earnings into our payroll system so that quarterly and year-end tax documents (as applicable) can be generated. Year-to-date is included with your payroll reports. You agree to check the data and immediately inform us of inaccurate or missing information. If you do not notify us of an error or omission prior to the next payroll, additional fees may be charged to correct the information.
3. Accuracy of Information. We provide services based on the information you provide us, and you are solely responsible for the accuracy of your information, including but not limited to employee identity, pay amount and frequency, overtime calculations, direct deposit account information, tax identification numbers and all other information supplied by you to us. You agree to review the reports and other payroll information we send you immediately when you receive them and notify us of any errors promptly. We have no liability to you or any third party for any costs which occurred due to incorrect data provided by the User to Guidant. Any recalculation or reissuance of reports or payroll as result of Employer’s delay in notifying Guidant of an error after 1 day after such period will incur an additional fee.
4. Fees. The initial amounts of our fees are stated on your Service Agreement(s) and can be found here: www.guidantfinancial.com/payroll. We may change the amount and nature of our fees at any time thereafter by providing written notice to User. You agree to any change in fees by continuing to use our services after you receive notice of the change. User will be notified of any change to existing fees at least thirty (30) days before the fee change goes into effect. If a fee increase or change to this Agreement is not acceptable to User, User may cancel the Services as provided herein prior to the time when such fee increase or change to this Agreement takes effect. User’s continued use of the Services beyond the cancellation window constitutes User’s agreement to those changes. If Guidant is unable to collect fees due because of insufficient funds in User’s Bank Account or for any other reason, User must pay the amount due immediately upon demand, plus any applicable exceptions processing fees, bank fees, or charges for return items, plus interest at the lesser of 18% per annum or the maximum rate permitted by law, plus attorneys’ fees and other costs of collection as permitted by law.
   
   1. Payment of Fees and Withdrawal of Funds. You agree to pay us our fees for the services we provide you, as specified in this Agreement and at www.guidantfinancial.com/payroll. You will let us withdraw these fees from your bank account, along with all amounts which we are to pay your employees and contractors, and all taxes and other amounts we are to remit to a third party, by ACH or any other method we choose. Based on National Automated Clearing House Association (NACHA) rules, which govern electronic banking, we are required to withdraw all of these funds at least two (2) business days prior to your payroll date. Guidant will withdraw these funds three (3) banking days prior to your payroll date. You will make all such funds available and collectable in your account on a timely basis for our withdrawals. If you do not meet your payroll submission deadline, we may require a wire transfer to fund your payroll. You agree to sign any forms and take any action necessary to allow us to withdraw the funds from your bank account. We will hold the withdrawn funds in our account until they are paid to employees, contractors, taxing authorities or third parties on or before the due date for such payments. We reserve the right to adjust your check date if necessary, to ensure that we remain consistent with NACHA rules.
   2. Non-payment. If we are unable to withdraw funds from your account as and when agreed, we may, among other things, (1) deduct what you owe us from any funds we are holding for you, including but not limited to funds we are holding for payment to third parties such as tax deposits, direct deposits, payroll funds, benefit payments and garnishments, (2) stop or reverse payments already made to you or third parties, including but not limited to tax deposits, direct deposits, payroll funds, benefit payments and garnishments, and (3) require a different funding mechanism for future payrolls and payments, such as wire transfer. It is your responsibility to notify your employees of any stopped payment or reversal, and we have no responsibility to make any such notification to your employees. We have no liability for any government or third party penalties, interest, damages or other costs which you incur due to non- payment, underpayment or late payment arising out of your failure to pay amounts owed to us or to make funds available to us as agreed, and you agree to indemnify and defend Guidant against any and all claims for any such penalties, interest, damages or other costs.
   3. Funds Paid in Error. We may recover any funds paid in error to you, your employees, contractors or any third parties. We may use any available means to recover such funds. You agree to cooperate with us in the recovery of those funds, and to take any action necessary to permit us to recover them. You will not be liable for funds paid by us to third parties because of our error.
   4. Electronic Funds Transfer. If Guidant requires payment of fees or other amounts due (collectively “Amounts Due”) through an Electronic Funds Transfer (“EFT”), User will (1) execute all documentation needed by Guidant to originate EFT transactions and to verify availability of funds in Employer’s bank account; (2) ensure that the funds representing the Amounts Due will be in Employer’s bank account in collectible form and in sufficient amount on the day the EFT is to be presented (“Funding Deadline”); and (3) allow and authorize Guidant to collect all Amounts Due from Employer’s bank account on the Funding Deadline. All EFTs are performed in compliance with NACHA rules. Client agrees (1) to follow NACHA rules as they are amended from time-to-time and assumes the responsibilities of an initiator of EFT’s; (2) that it will not initiate any EFT that violates any law; and (3) that Guidant may identify Employer to banks involved in the EFT. User further agrees that it will notify Guidant, pursuant to applicable NACHA rules and federal regulations, if funding for Employer’s payroll is received from a foreign financial agency and of any employees with non-US addresses.
   5. ACH Transactions. During the course of this Agreement, Guidant may originate certain ACH transactions on your behalf or involving your deposit account. The originating depository financial institution (“ODFI”) we use for those transactions requires your agreement to the following terms and conditions, and you accept these terms and conditions as part of your agreement with us: (1) we have full and exclusive power to provide the ODFI with directions on your behalf; (2) the ODFI has no liability whatsoever for our acts, omissions or representations and is not responsible for any loss caused by us; (3) we are not an agent of the ODFI and have no authority to act or make commitments on behalf of the ODFI; (4) the ODFI is not monitoring our transactions in respect of your funds; (5) your claims shall be made solely against us; (6) IN NO EVENT SHALL THE ODFI BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES, NOR SHALL THE ODFI HAVE LIABILITY IN ANY EVENT IN EXCESS OF THE FEES IT RECEIVES FOR HANDLING YOUR TRANSACTIONS; and (7) the ODFI shall be entitled to rely upon and enforce the terms and conditions of this paragraph. This paragraph may not be amended, terminated, revoked or otherwise altered without the prior written consent of the ODFI. You waive notice of acceptance of this paragraph.
5. Change of Service Plans. Guidant currently offers several Service Plans with varying features and fee schedules, as well as multiple add-on services that User can choose to opt into for additional fees, unless otherwise stated. Before User may begin to use the Services, User will be asked to select a Service Plan from those detailed at www.guidantfinancial.com/payroll. User may request to change User’s Service Plan via the Platform. If User chooses to upgrade from User’s current Service Plan (the “Current Plan”) to a more expensive Service Plan (the “New Upgrade Plan”), then such upgrade will promptly go into effect, and User will begin receiving access to the features and Services available under the New Upgrade Plan at the time of such upgrade. The fee schedule for the New Upgrade Plan will be applied to User’s Service Plan charge for the calendar month in which User upgraded and for each calendar month thereafter for so long as User is subscribed to the New Upgrade Plan. If User chooses to downgrade from User’s Current Plan to a less expensive Service Plan (the “New Downgrade Plan”), then the downgrade will not go into effect until the beginning of the calendar month following the calendar month in which User elected to downgrade (the “Downgrade Election Month”). User will still receive access to the features and Services available with User’s Current Plan until the end of the Downgrade Election Month. After the Downgrade Election Month, User will lose access to some of the features and Services available with User’s Current Plan and will only have access to the features and Services available under User’s New Downgrade Plan. The fee schedule for User’s Current Plan will be applied to User’s Service Plan charge for the Downgrade Election Month, and the fee schedule for the New Downgrade Plan will be applied to User’s Service Plan charge for the calendar month following the Downgrade Election Month and for each calendar month thereafter for so long as User is subscribed to the New Downgrade Plan.
6. Termination. The Services and this Agreement will continue until they are terminated by either party. Either party may terminate the Services and this Agreement by giving other Party at least thirty (30) days’ written notice. In addition to Guidant’s foregoing termination right, Guidant may immediately suspend or restrict User’s Account; suspend or restrict User’s access to the Platform or any Services; block User’s ability to use any particular feature of a Service; or immediately terminate the Services and this Agreement, in each case with or without notice to User, in the event that: (i) Guidant has any reason to suspect or believe that User may be in violation of this Agreement; (ii) Guidant determines that User’s actions are likely to cause legal liability for or material negative impact to Guidant; (iii) Guidant believes that User has misrepresented any data or information or that User has engaged in fraudulent or deceptive practices or illegal activities; (iv) Guidant has determined that User is behind in payment of fees for the Services and User has not cured such non-payment within five (5) days of Guidant providing User with notice of the non-payment; or (v) User 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 User. Furthermore, while Guidant strives to support a multitude of business and organization types, in certain unique situations, if Guidant cannot support the payroll-related filings for User’s business or organization type, Guidant may immediately terminate the Services and this Agreement upon written notice to User.
   
   1. The termination of any of the Services or this Agreement will not affect User’s or Guidant’s rights with respect to transactions which occurred before termination. Guidant will have no liability for any costs, losses, damages, penalties, fines, expenses, or liabilities arising out of or related to Guidant’s termination of this Agreement. Sections 4 (to the extent that there are any unpaid fees for services rendered as of the time of termination of this Agreement), 7, 14, 15, 16, 17, 19, 23, 28, 29, 31 and 32, of this Agreement, and any sections of the Service Terms which by their nature should survive, will survive and remain in effect even if this Agreement is terminated, cancelled, or rescinded.
   2. Upon termination of any of the Service(s) and/or termination of this Agreement, User’s right to access and use such terminated Services(s) will automatically terminate; provided, however, that Guidant will generally continue to provide User with the ability to access User’s Account in a limited capacity with respect to such terminated Service(s) to view and download information that was available in User’s Account at the time of termination of such Service(s) (the “Limited Access Rights”). While User has Limited Access Rights, User must use reasonable efforts to adequately secure, and keep confidential, any passwords or credentials for User’s Account, and any information accessible via User’s Account. Guidant may deny the Limited Access Rights to User, or Guidant may revoke the Limited Access Rights at any time, in its sole discretion, if it has any reason to believe that User may have at any time breached this Agreement.
   3. Termination of Tax filings. User acknowledges and understands that if User terminates the Payroll Service through User’s Account or Guidant terminates the Payroll Service pursuant to this provision, then such termination may not be reversible. In the event that User or Guidant terminates User’s Payroll Service, then as of the time of such termination, Guidant will have no obligation to make further payroll tax filings on User’s behalf. Notwithstanding the foregoing, if User or Guidant terminates the Payroll Service, User will be asked to make specific elections regarding whether it would like Guidant to make certain final payroll tax filings (such filings, the “Final Payroll Tax Filings”) on User’s behalf following such termination of the Payroll Service (such elections, the “Post-Termination Filing Elections”). If User does not provide Guidant with its Post-Termination Filing Elections promptly following termination of the Payroll Service, then User authorizes Guidant to make the Post-Termination Filing Elections for User on User’s behalf (the “Guidant Selections”). User acknowledges and agrees that Guidant may rely on User’s Post-Termination Filing Elections and the Guidant Selections, and Guidant is not responsible or liable for (i) any consequences or Claims arising (directly or indirectly) from such reliance; or (ii) any Resulting Errors, or any consequences or Claims arising (directly or indirectly) from any Resulting Errors, in the Final Payroll Tax Filings.
7. Non-fiduciary agreement. In performing the Payroll Service, User acknowledges and agrees that (i) Guidant is not acting in a fiduciary capacity for User and/or User’s business; (ii) using the Payroll Service does not relieve User of User’s obligations under local, state, or federal laws or regulations to retain records relating to User’s data contained in Guidant’s files; and (iii) any information that Guidant provides in connection with the Payroll Service is for informational purposes only and should not be construed by User as legal, tax, or accounting advice.
8. Banking References and Pre-noting. You agree, upon our request from time to time, to complete our Bank Reference Authorization or similar form requesting from your bank information on the status of your account. You further agree that we may send a zero amount direct deposit (a pre-note) to each employee account to which a direct deposit will be made, in order to verify the accuracy of the account information in our systems.
9. Receipt of Information. To ensure timely and accurate processing, payroll information must be e-mailed to us at [email protected] or input through Guidant’s payroll platform providing payroll information or that data is ready to be transferred to the payroll system. We are only responsible for processing information received through the payroll application and/or email. Telephone calls to and from Guidant may be recorded for service verification, quality control and training purposes. By continuing to use our services, you consent to such recording.
10. Electronic Access. Guidant will provide, either via email or through Guidant’s payroll platform, Client’s employees’ direct deposit check stubs and/or Client’s payroll reports. This requires that Client has employee self-service access. Client acknowledges that each state has separate laws and regulations governing Client’s obligation to distribute payroll check stubs to its employees and/or to retain copies of payroll check stubs or the information on the payroll check stubs. Guidant is not responsible for Client’s compliance with, nor shall it provide legal or other financial advice to Client with respect to federal, state, and local laws and ordinances governing the distribution and retention of payroll check stubs. Client is solely obligated to comply with any and all applicable federal, state, and local laws and ordinances governing the distribution and retention of payroll check stubs.
11. Compliance with Laws. We will comply with all applicable laws governing payroll providers. You are responsible for and agree to comply with all applicable FLSA requirements, anti-discrimination and anti-harassment requirements, pension and benefit requirements, record retention requirements, the Affordable Care Act, and other federal, state and local laws, regulations, rules, rulings, ordinances, resolutions, judgments, orders, and acts applicable to your business or to your employees or contractors. If you have questions about any of those requirements, you agree to consult an attorney. Any advice we or our employees or agents may give you with regard to those requirements is purely gratuitous and you agree not to rely on it. If any error results, whether directly or indirectly, from Guidant’s reliance on information (or modifications to information) provided by User, an employee or independent contractor of User, an Account Administrator, an Authorized Representative, or anyone that Guidant reasonably believes to be User, an employee or independent contractor of User, an Account Administrator, or an Authorized Representative of User (each such error, a “Resulting Error”), then Guidant will attempt to correct the Resulting Error, but Guidant makes no warranties or guarantees that it will be able to partially or fully correct the Resulting Error. Guidant does not warrant, endorse, guarantee, or assume responsibility for any product or service, including without limitation Third-Party Services, advertised or offered by a third party through the Platform or any hyperlinked website or service, and Guidant will not be a party to or in any way be responsible for monitoring any transaction between User and third-party providers of products or services. Guidant works with third-party service providers to provide the Services, and unless otherwise stated in an agreement between User and any such third-party service provider, the third-party service providers (i) make no warranty as to the accuracy or completeness of information provided to User, and (ii) disclaim express warranties or implied warranties imposed by law with respect to the services they provide, whether directly or indirectly, to User.
12. Our Defense of Audits and Claims. Subject to receipt of Timely Notice, we will defend and hold you harmless against all interest, penalties, and costs resulting from any claim that Guidant has not properly, as required of us under this Agreement: (i) delivered payroll to you or to the employees; (ii) withheld or paid state or federal taxes; (iii) withheld or paid any garnishment or child support order; (iv) withheld or paid any other amount to be drawn from your account by us and transmitted to a third party. You agree to allow us to control the defense of claim, and we are only responsible for the fees and costs of attorneys, accountants and other professionals if we have hired them. We have no obligation on any claim for which we do not receive Timely Notice, nor on any claim which is not due to our error. “Timely Notice” as used in this Agreement means that you will forward to us by fax, e-mail or hand delivery as soon as possible and in no event more than 5 business days after you receive a notice from a taxing authority, court or other claimant.
13. Third-Party Goods and Services. From time to time we may refer you to a third-party vendor for goods or services. The prices, terms and conditions under which such goods or services are provided is between you and the third-party vendor and is outside our control, even if you order and/or receive the goods or services through us, and even if we include any charge for the goods or services on our bill to you. We make no representation or warranty as to any such third-party goods or services, and we have no liability regarding the provision, failure or any other aspect of any such goods or services.
14. Indemnity. You will defend and unconditionally indemnify Guidant and our affiliates, owners, officers, employees and agents and hold us and them harmless against all liability, costs, expenses, interest, penalties, claims, losses and damages (including but not limited to reasonable attorneys’ fees and other professional fees) of whatever nature resulting directly or indirectly from: (i) your breach of any obligation, representation or warranty of this Agreement; (ii) your actual or alleged wrongful, intentional or negligent act or omission; (iii) you or your agent’s, affiliate’s, or employee’s actual or alleged violation of applicable FLSA requirements, anti- discrimination or harassment requirements, pension or benefits requirements, or any other federal, state or local law, regulation, rule, ruling, ordinance, resolution, judgment, order, or act;(iv) the conduct of your business; (v) any claim based on your use of any third party software, process, patent, or any other form of intellectual property (vi) your breach of NACHA rules. The provisions of this paragraph will survive the termination of this Agreement.

    By entering this Agreement, User is acknowledging that User has read and that User understands the Terms of this Agreement and that User agrees to be bound by the arbitration provision and class action waiver.

    Notwithstanding any other provision in this Agreement, and except as otherwise set forth in this section, if either User or Guidant has any dispute, controversy, or claim, whether founded in contract, tort, statutory, or common law, concerning, arising out of, or relating to this Agreement, the Platform, or the Services, including any claim regarding the applicability, interpretation, scope, or validity of this arbitration clause and/or this Agreement (each of the foregoing, a “Legal Claim”) that cannot be resolved directly between User and Guidant, then such Legal Claim will be settled by individual (not class or class-wide), confidential, binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with the then-current Commercial Arbitration Rules and Mediation Procedures of the AAA (the “AAA Rules”), including any expedited procedures. To initiate an arbitration proceeding, an arbitration claim must be submitted by the claimant (the “Claimant”) to the AAA, and a written Demand for Arbitration must be provided to the other party (the “Opposing Party”), pursuant to the AAA Rules. Arbitration hearings will be held in Seattle, Washington or any other location that is mutually agreed upon by User and Guidant. A single arbitrator will be mutually selected by Guidant and User and shall be (i) a practicing attorney licensed to practice law in Washington or a retired judge; and (ii) selected from the arbitrators on the AAA’s roster of commercial dispute arbitrators who have a background in payroll, health insurance, human resources, and/or online commerce law (or if there are no such arbitrators, then from the arbitrators on the AAA’s roster of commercial dispute arbitrators) (collectively, the “Arbitrator Requirements”). If Guidant and User cannot mutually agree upon an arbitrator within ten (10) days of the Opposing Party’s receipt of the Demand for Arbitration from the Claimant, then the AAA shall appoint a single arbitrator that satisfies the Arbitrator Requirements. The arbitrator will follow the law and will give effect to any applicable statutes of limitation. The prevailing party shall be entitled to an award of the costs and expenses of the arbitration, including reasonable attorneys’ fees and expert witness fees. The award rendered by the arbitrator shall be final and binding upon User and Guidant. A judgment on the award may be entered and enforced in any court of competent jurisdiction. Guidant may, in its sole discretion, commence an action in any state or federal court of competent jurisdiction within King County, Washington, for any monetary amounts that User owes to Guidant (each, an “Action”). User hereby waives any objection to jurisdiction or venue, or any defense claiming lack of jurisdiction or improper venue, in any Action brought by Guidant in such courts.

    User and Guidant agree and acknowledge that this Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act (Title 9 of the United States Code) shall govern the interpretation, enforcement, and proceedings pursuant to the arbitration clause in this Agreement. USER FURTHER ACKNOWLEDGES, UNDERSTANDS, AND AGREES THAT USER AND GUIDANT ARE EACH WAIVING THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY AS TO DISPUTES HEREUNDER AND THAT USER IS WAIVING ITS RIGHT TO PARTICIPATE IN ANY CLASS ACTION PROCEEDING ARISING FROM THIS AGREEMENT.

15. Exclusion of Other Claims. Except as expressly provided in this Agreement, neither party will be required to defend, indemnify or hold the other party harmless from or against any claim whatsoever. Without limiting the generality of the foregoing, we have no liability for goods or services provided to you by anyone other than Guidant and as to Guidant our liability is limited as stated herein.
16. Limitation of Warranties. We warrant that we will perform our services required under this Agreement in a good and workmanlike manner. Our only obligation under this warranty is to perform our services in a timely fashion until they are performed in a good and workmanlike manner. We make no warranty of any type as to any software program or other intellectual property licensed by you from us or third parties. We hereby assign any third-party warranties regarding such programs to you, as your interest appears, to the extent that we are able to do so. We make no warranty or representation as to goods or services supplied to you by anyone other than Guidant and as to Guidant, our warranties are limited as stated herein. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, WE MAKE NO WARRANTIES OF ANY TYPE, EITHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, WITH RESPECT TO ANYTHING RELATED TO THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE MAKE NO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
17. Limitation of Liability and Remedies. Your rights and remedies herein are exclusive and in lieu of all other rights and remedies at law or in equity. Our aggregate liability to you for any and all causes whatsoever, regardless of the form of action, whether arising in contract (including but not limited to indemnity, warranty and all other types of claims under this Agreement and any other agreement) or tort (including but not limited to strict liability and negligence), will in no event exceed the lesser of: (a) your actual direct damages; or (b) an amount equal to the total aggregate fees you have paid to us under this Agreement in the 12 months preceding the claim. We have no liability for a client’s breach of NACHA rules or for damages caused by our processing of incorrect, incomplete, inconsistent or fraudulent information provided by you, or your employees, regardless of whether you authorized such information to be provided to us. This paragraph will not, however, limit our liability for our own gross negligence or willful misconduct. In no event will we be liable for any special, incidental, indirect, consequential or exemplary damages or lost profits, regardless of whether we were advised of the possibility thereof and regardless of whether any limited remedy herein fails of its essential purpose. This paragraph will survive the termination of this Agreement.
18. Relationship of the Parties. The parties will have the relationship of independent contractors with respect to each other. This Agreement does not create the relationship of principal and agent, employer and employee, or of partnership or joint venture between the parties or any other persons.
19. Intellectual Property. Client acknowledges and agrees that all computer hardware and software, and other intellectual property, including, but not limited to, all computer programs, source code(s), web designs and other property used, leased, licensed, or owned by Guidant, or any other application, program or process used by Guidant, including, but not limited to the Platform used to provide the Services and the Software (the “Company Property”), are confidential and the sole property of Guidant. Employer acknowledges and understands that it may have been granted a limited license to use the Application and Software and related programs and databases provided by Guidant, and that this license is exclusive to Employer and the license will terminate when this Agreement terminates. Employer agrees not to copy, distribute, provide, lend or reproduce any Company Property. Employer also agrees not to recompile, decompile, disassemble, reverse engineer, or make or distribute any other form of, or any derivative work from the Company Property. Employer agrees that it will abide by the terms and conditions of any user license or other agreement relating to the Company Property. Employer agrees to take appropriate action with its employees and agents to comply with its obligations under this Agreement regarding the Company Property. Client shall notify Guidant immediately of any unauthorized use, disclosure, modification, distribution, or copying of any Company Property.

    In the event that Employer is ever held to be the owner of any of the Company Property by way of the Services provided herein, then Employer hereby irrevocably assigns to Guidant all such rights, title, and interests in and to such Company Property, as well as all changes, modifications, or corrections to the Company Property, and agrees to execute all documents deemed by Guidant to be necessary to implement and confirm the stated words and intent of this Section.

20. Notices. Any notice or other communication under this Agreement shall be in writing and may be delivered by fax or e-mail (with appropriate acknowledgment of receipt), hand delivery or regular United States mail to you at the contact information stated in the Client Requirements Document, or to us at the contact information stated below. Either party may specify a different address by written notice to the other. Notice is deemed effective when received by the party to whom addressed, or when the fax or e-mail is completed as shown by written or electronic receipt. “Timely Notice” as used in this Agreement means that you will forward to us by fax, e-mail or hand delivery as soon as possible and in no event more than 5 business days after you receive a notice from a taxing authority, court or other claimant.
21. Authorized Payroll Contacts. You may designate to us in writing from time to time one or more Authorized Payroll Contacts to act on your behalf. We may rely on your Authorized Payroll Contacts to transmit and receive payroll information and other information related to our services under this Agreement, and to make commitments and decisions for you related to this Agreement. You may change your Authorized Payroll Contacts by written notice to us. Unless you tell us otherwise, the person who signed the Service Agreement for you is an Authorized Payroll Contact. We may refuse to receive information from anyone other than an Authorized Payroll Contact.

    User will designate and authorize either itself and/or one or more individuals with authority to (i) act on User’s behalf, (ii) provide information on User’s behalf, and (iii) bind User and/or User’s business with respect to the Services (each such individual, an “Account Administrator”). An Account Administrator is authorized by User to access the Services by entering a confidential user ID and password. Such Account login information will entitle the Account Administrator, depending on their designation and the permissions given by User, to have the authority to input information and access, review, modify, and/or provide approvals on User’s behalf.

    User is solely responsible for all actions taken under any Account that User has access to. Any actions taken under Accounts that User has access to will be deemed authorized by User, regardless of User’s knowledge of such actions (the “Authorized Actions”). Authorized Actions include but are not limited to (i) actions taken by User, an Account Administrator, or an authorized representative of User (an “Authorized Representative”), and (ii) actions that User, an Account Administrator, or an Authorized Representative (or anyone that Guidant reasonably believes to be User, an Account Administrator, or an Authorized Representative) directs or instructs Guidant to take on its behalf.

    In addition, User is solely responsible for (i) following instructions that Guidant provides to User with respect to the Services, whether such instructions are provided via the Platform, email, or otherwise, (ii) obtaining, maintaining, and keeping secure any equipment and ancillary services necessary to connect to, access, or otherwise utilize the Platform, including but not limited to internet access, networking equipment, hardware, software, and operating systems, and (iii) maintaining applicable accounts with providers of Third-Party Services (as defined below) utilized by User.

    User will, and will cause authorized users of User’s Account, including but not limited to Account Administrators and Authorized Representatives, to take reasonable steps to adequately secure, and keep confidential, any User Account passwords or credentials, and any information accessible via the User Account. If User believes or suspects that User’s Account or passwords or credentials for User’s Account have been disclosed to, accessed by, or compromised by unauthorized persons, User must immediately notify Guidant. Guidant reserves the right to prevent access to the Services if Guidant has reason to believe that User’s Account or passwords or credentials for User’s Account have been compromised.

    User is responsible for timely providing Guidant with the information required for Guidant to perform the Services. User may furnish such information directly to Guidant or via an Account Administrator or Authorized Representative, such as User’s accountant. Furthermore, User represents and warrants to Guidant that for any information that User shares with Guidant, whether directly, via its Account Administrator, or via its Authorized Representative, User will have the authority to share such information. User is responsible for the accuracy and completeness of information provided to Guidant, and User will ensure that any such information, whether provided by User, an Account Administrator, or Authorized Representative, is accurate and complete. Moreover, User is required to maintain the accuracy and completeness of such information on an ongoing basis and will promptly notify Guidant, whether directly or through an Account Administrator or Authorized Representative, of any changes to the information provided to Guidant.

    In addition, User, whether directly or through its Account Administrators or Authorized Representatives, is responsible for reviewing any reports, filings, information, documents or materials (collectively, the “Materials”) posted to the Platform by Guidant (or otherwise made available to User by Guidant) for User’s review, and User or its Account Administrators or Authorized Representatives must notify Guidant of any inaccuracies in the Materials as soon as possible, or within the time period specified in communications received from Guidant.

    User, whether directly or through its Account Administrators or Authorized Representatives, is also obligated to promptly notify Guidant of any third-party notices that User may receive which could affect Guidant’s ability to effectively provide the Services or increase the likelihood that a Claim (as defined below) is brought against User or Guidant in connection with the Services, such as notices from the Internal Revenue Service or other government agencies regarding penalties or errors relating to the Services.

    User agrees that, to the fullest extent permitted by law, the provision of Account login credentials (e.g., username and password) or identity verification credentials to Guidant by User, an Account Administrator, or an Authorized Representative, together with any actions authorized by such foregoing parties via the Platform (e.g., clicking the “Submit Payroll” or other buttons) or otherwise (e.g., verbally telling a Guidant Payroll representative to take an action), will have the same effect as such parties providing a written signature authorizing electronic payments, filings, or any other actions in connection with the Services.

    User gives Guidant permission to obtain, verify, and record information that identifies the individual who creates an Account, is the intended user of an Account, or accesses the Services. Guidant may ask for User’s name, address, date of birth, social security number, and other information that will allow Guidant to identify User. Guidant may also ask to see User’s driver’s license or other identifying documents. User consents to and authorizes Guidant to obtain credit reports about User’s business, and to report adverse credit information about User’s business to others, including but not limited to the Internal Revenue Service and any applicable state taxing authorities. Guidant may, at its discretion, decline to offer the Services for any reason, including in the event that the Services enrollment process is not satisfactorily completed, Guidant is unable to verify satisfactory credit of User’s business, and/or for other lawful business reasons.

22. SMS/MMS Messages. By providing User’s mobile phone number to Guidant, User agrees that Guidant may send User autodialed Short Message Service (“SMS”) or Multimedia Messaging Service (“MMS”) messages about activity in User’s Account and service updates, as well as SMS or MMS messages soliciting User’s feedback about the Services and User’s experience interacting with Guidant’s Customer Care team. Standard message and data rates may apply. Note that Guidant will not send User autodialed marketing SMS or MMS messages unless User expressly agrees in writing to receive such messages. If User would like to opt out of receiving SMS and MMS messages, User should contact [email protected].
23. Confidentiality.
    
    1. Guidant agrees to use reasonable measures to protect the confidentiality of payroll information you provide us with the same degree of care we would use in protecting our own confidential information. We will use your payroll information solely for the purposes of providing you with payroll processing and other services, including but not limited to, 401(k) plan administration services that Guidant provides to Employer which you have requested, and improving our ability to provide payroll services to you and other clients. We will not disclose your payroll information to third parties except as necessary to carry out services requested by you, or as required by law.
    2. Employer shall protect from disclosure to any third party the Application and any information regarding the design and development of the all Guidant applications and their associated documentation, as well as: (a) screen layouts and specific data entry fields, and (b) Guidant’s pricing, training and other terms and materials, and will not allow a third party to access such information unless given prior written consent by Guidant.
    3. The obligations in this Section 27 do not apply to information that the receiving party can show: (a) is or becomes publicly known or available without breach of this Agreement; (b) is received by a receiving party from a third party without breach of any obligation of confidentiality; (c) was previously known by the receiving party as shown by its written records; or if disclosure is required by legal process after giving adequate notice of such process to the other party.
24. Payroll Processing. This Service consists of processing drafts for employee or contractor wages, salaries, bonuses, and other payments based on status, hours and rates timely reported to us in writing by you, in accordance with the schedule we have agreed on. We will provide you with a Payroll Calendar which lists your deadlines for sending payroll data to us and corresponding pay dates. If you submit your payroll to us after your calendared submission date/time, a premium processing fee may apply. Our payroll processing service includes calculation of payroll taxes; data processing for garnishments, child support orders, retirement plan deductions and other deductions; providing unlimited earning and deduction codes; our standard payroll reports with each payroll; printing a brief customized message on your payroll check stubs and direct deposit stubs which may be personalized by employee name or other payroll information; and providing an authorized laser signature on your checks. Garnishments, child support and other deductions can only be processed if we have Timely Notice thereof. Client must provide Guidant with a garnishment order for each employee for whom wages are to be garnished. Guidant will hold garnished wages in an account established by Guidant until such time that the amounts are due. Employer remains solely responsible for the correct calculation of the amount to garnish from the employees’ wages. At your request, we can deduct a fee for you from the employee’s or contractor’s check or deposit for processing of such orders as permitted by law. You agree to notify Guidant of your payroll data (or that you are skipping a payroll) by the submission date specified on the Payroll Calendar. Although we may at times complete payroll processing earlier, this shall not be a modification of future dates on the Payroll Calendar. If you have elected to have physical checks printed and distributed, Payroll drafts and statements will be provided to you in pressure-sealed mailers except as otherwise agreed.
25. PayCard Program. If Employer elects, Guidant may provide payroll payment to Employer’s Employees via PayCard, a prepaid card program (“Program”). Under this Program, employees or independent contracts will be issued prepaid cards funded by the Employer. The Cards shall be issued by a FDIC-insured bank selected for the Program (“Bank”). All Program funds will be held in FDIC Insured Banks.
    
    1. Each Participant shall be required to enroll in the Program by submitting certain information, and his or her participation shall be contingent on successful completion of “know your customer” due diligence and other legal requirements. The terms and conditions governing the use of the Cards and the accounts associated with such Cards will be supplied by Bank. Sub-Accounts shall be opened only for Participants that are residents of the United States or its territories.
    2. Card Ordering: Card orders will be shipped to the designated employer locations by the Card manufacturer and will arrive via a bonded and approved carrier. Card orders must be signed for upon arrival. All Cards must be placed at the time of receipt into inventory in a secured area. An employee designated by management should be appointed to ensure the physical and procedural security policies are implemented.
    3. Card Inventory: Physical security of the Cards in inventory must be maintained at all times. Cards must be stored in a controlled environment, such as a safe, with access limited to employees who have successfully passed background screening checks. An inventory log must account for the number of Cards received, Cards used, Cards spoiled (Cards that cannot be used due to damage, tampering or expiration) and remaining Cards that should balance to the number of Cards on hand at any time. An explanation of spoilage should be included on the log. Any inventory discrepancy must be reported as soon as detected. Employer shall bear all risk of loss associated with unauthorized activity on Cards or related funds on deposit resulting from unauthorized access to or theft of Card plastics in its possession or control. If Employer is disbursing Cards, Employer shall deliver to each Participant the Enrollment Materials provided to it.
    4. Enrollment Materials: The Enrollment Materials include, without limitation, the Cardholder Agreement, a Card, a Direct Deposit Authorization Form, disclosures as may be required by applicable law and regulation and other materials. Employer covenants and represents that it will provide Enrollment Materials to each Participant when Employer provides a Card from its inventory.
    5. Employer shall comply with applicable law and card network rules in connection with its obligations under the Agreement. Employer represents and warrants that it shall not use the Program, and shall use its best efforts to prevent itself from being used, for any illegal purpose or activity, including without limitation, money laundering.
    6. FEES AND CHARGES. Employer acknowledges that certain fees and charges are to be paid by Participants, and that such fees and charges shall be set forth in a disclosure statement that will be provided and included in the Enrollment Materials. We reserve the right to change the fees with appropriate prior written notice to Participants.
    7. SYSTEM AND TRANSACTION MONITORING. We reserve the right either directly, through the PayCard provider, or subcontractor, to monitor Card activity, and to refuse to issue a Card, cancel a Card previously issued to a Participant or temporarily suspend usage of a Card, due to actual or suspected fraud or unauthorized use, and to comply with applicable law, card network rules and bank safety and soundness requirements. Except as prohibited by applicable law, Bank shall disburse to the Participant any funds remaining on a cancelled Card.
26. HR Services Program
    
    1. a. If applicable, part of your Service includes Human Resources (HR) service delivered (“HR Support Center Services”). This service includes HR tools, information, training, and other resources developed for small to mid-sized businesses (the “HR Content”).
    2. Terms of Use for User Accounts and HR On-Demand. Each HR Support Center user account is intended for one individual user only. The HR On-Demand consulting service is provided to answer questions from HR Support Center users with HR On-Demand access only. HR questions must be submitted by the one individual authorized user, and any questions submitted on behalf of organizations or individuals other than the account owner may not be answered.
    3. Disclaimer. THE HR SUPPORT SERVICES TO BE PROVIDED HEREUNDER ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. THE USE OF THE SERVICES BY EMPLOYER IS AT THEIR SOLE RISK. GUIDANT DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES GUIDANT MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SERVICES. GUIDANT MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.
27. Entire Agreement. This Agreement, together with the Terms and Conditions you provide us, constitute the entire agreement between you and us and supersedes any previous agreements, drafts, negotiations, discussions and representations between the parties. You acknowledge and agree that, in entering into this Agreement, you have not relied on any representation which is not contained within the terms of this Agreement. Headings used in this Agreement are merely for the convenience of the parties and are not to be given any weight in the interpretation of this Agreement.
28. Binding Effect. The provisions of this Agreement will be binding upon the parties and their respective heirs, executors, administrators, legal representatives, successors and assigns. No person or entity (including but not limited to your employees and contractors) is to be deemed to be a third-party beneficiary of this Agreement.
29. Severability. If any provision or portion of a provision of this Agreement is held void or unenforceable by a court of competent jurisdiction, the entire remainder of this Agreement will continue in full force and effect, and, if possible, the parties will substitute a like provision which carries out the intent of the parties in a manner which is enforceable.
30. Assignment. We may assign any or all of our rights and delegate any or all of our duties under this Agreement at our sole discretion.
31. Governing Law and Venue. This Agreement and any disagreement or claim arising between the parties is governed by the law of the State of Washington. Any lawsuit you bring against us will be filed in state or federal court in Seattle, Washington.
32. Force Majeure. We have no liability for any delay or default in performing hereunder if such delay or default is caused by conditions beyond our control including, but not limited to natural disasters, severe weather, government restrictions (including the denial of or cancellation of any necessary license, registration or approval), war, insurrection, failure of one or more suppliers, subcontractors, carriers, or any other cause beyond our reasonable control.
33. Waiver. No waiver hereunder (whether by course of conduct or otherwise) shall be effective unless in writing and no waiver shall be considered a waiver of any other or further default. Our non-enforcement or waiver of any provision under any other agreement(s) with you or any other party, shall not be deemed a waiver of any provision under this Agreement.

FURTHER INQUIRIES

Send your questions to:

Guidant Financial
ATTN: Legal Department
1100 112th Ave NE, Ste 100
Bellevue, WA 98004

888.418.0374 (fax)
425-289-3200 (office)
[email protected]