Payroll and HR Solutions
Services Schedule

Version 1.0

The terms and conditions of this Service Schedule apply upon your election to receive all or any Payroll and HR Services and are applicable to the provision of those services.  We will provide the Services you have elected, which are available either on a “bundled” or “à la carte basis,” by submitting a Service Order and agreeing to pay applicable fees and charges. 

1. Payroll and HR Services.

1.1. General. SP will provide the payroll and HR Solutions services described in this Service Schedule and elected by you by submitting a Service Order (collectively, “Payroll and HR Services”).  Services available for you to select from among include (i) calculating your payroll obligations and associated liabilities; (ii) processing your payroll and making related payroll payments on your behalf; (iii) making certain payroll tax payments and payroll tax filings electronically on your behalf; and (iv) if applicable, sending wage garnishments, such as child support payments, to applicable local, state, or federal agencies. You may elect for SP to handle check/voucher generations (all checks will be drawn against SP accounts), providing for logos and authorized signatures on all checks/vouchers; check/voucher stuffing, direct deposits, full reporting including online access to checks and payroll histories; and accrual processing.  In addition, you may elect to use our HR Solutions technology to improve your human capital management workflow including the secure storage of pertinent employee data and track HR processes in an organized web-based system.

1.2. Payroll Set-Up. You agree to complete and sign additional forms or authorizations as we may reasonably request, as required by law or as otherwise necessary for us to provide the Payroll and HR Services. Prior to your initial payroll processing date, you must submit the completed and executed documents we require for providing Payroll and HR Services, including your payroll and bank account information, any required federal, state, or local powers of attorney, and any additional information requested. The Payroll and HR Services provided are dependent upon the delivery of complete and accurate payroll information by you (including proof of federal, state, and local tax identification numbers). Failure to provide the required documents and payroll information may adversely impact our ability to perform the Payroll and HR Services. We will notify you via electronic communication or by other means when all information necessary to begin the Payroll and HR Services has been received and the enrollment process for the Payroll and HR Services has been completed.

1.3. Your Retained Responsibility for Pre-Service Period Payroll Matters. You acknowledge that you are solely responsible for: (i) depositing any federal, state, and local withholding liabilities incurred prior to the commencement of SP’s Payroll and HR Services; (ii) submitting any payroll returns to tax agencies (state, federal, and/or local) that were due for payroll tax liabilities incurred prior to initiation of SP’s Payroll and HR Services, and (iii) canceling any prior payroll service or services of professional employee organizations/employee leasing companies.

1.4. SP Not a Fiduciary or Adviser. You acknowledge and agree that (i) SP is not acting in a fiduciary capacity for you, your business or your employees when providing Payroll and HR Services; (ii) using the Payroll and HR Services does not relieve you of your obligations under local, state, or federal laws or regulations to retain records relating to your data; and (iii) any information that we provide in connection with the Payroll and HR Services is for informational purposes only and should not be construed as legal, tax, or accounting advice.

1.5. Fees. Fees applicable to SP’s delivery of Payroll and HR Services to you are as shown as reflected on your Service Order. 

1.6. Third-Party Services. Third-party provided services may be made available through the SP platform including, but not limited to, services provided by Swipeclock, Employee Navigator, Federal Express, United Delivery Services, Turbo Tax, HR Answerlink, and Background Checks (“Third Party Providers”). SP may serve as billing agent for such Third Party Providers, but bears no responsibility and shall have no liability for the performance of Third Party Providers.   Each Third Party Provider is solely responsible for the performance of your engagement with them.

2. Payroll Information.

2.1. Submission and Review. Prior to submitting your first payroll, you shall review the Payroll Information (as defined below) for completeness and accuracy. “Payroll Information” shall mean any information you furnish to us in connection with the Payroll and HR Service, including and all information the information used to calculate and pay employee payroll, pay payroll taxes to applicable taxing agencies (including your employer identification number(s), unemployment insurance tax rates, and employment tax deposit schedule), produce payroll tax returns and W-2 statements, and print checks. You must correct or provide, respectively, any incorrect or missing Payroll Information, by using the payroll software we make available to you. You are fully responsible for the accuracy of all information you provide, submit, and/or approve (whether provided directly or through authorized representatives), and you are solely responsible for any claims, including but not limited to IRS penalties and/or interest, and other penalties and/or interest arising from the failure to timely provide and maintain accurate and complete Payroll Information at all times.

2.2. Approval. You agree that by submitting each payroll (including the first payroll) to us: (i) you approve all Payroll Information; (ii) you represent and warrant to SP that no Payroll Information submitted to us will result in Entries that would violate the sanctions program of the Office of Foreign Assets Control of the U.S. Department of the Treasury or any other applicable laws, rules, or regulations; (iii) you waive and release us from any claims arising out of any errors or omissions in the Payroll Information you have provided and have not corrected; and (iv) you acknowledge that any subsequent request for corrections will be considered special handling, and additional fees may apply. You retain full responsibility for any audits or assessments.

3. Payroll Authorizations.

3.1. Payment Orders. You are responsible for verifying that anyone providing an instruction to approve, release, cancel, or amend the Payroll Information used to create Entries (each, a “Payment Order”) to be originated by us is authorized to do so. We do not verify or review Payment Orders for the purpose of detecting any errors; it is your responsibility to verify the accuracy of all Payment Orders.

3.2. Information Errors. If a Payment Order describes the payee inconsistently by name and account number, (i) payment may be made on the basis of the account number even if you identify a person different from the named payee; or (ii) we may, in our sole discretion, refuse to accept or may return the Payment Order. If a Payment Order describes a participating financial institution inconsistently by name and identification number, the identification number may be relied upon as the proper identification of the financial institution. If a Payment Order identifies a non-existent or unidentifiable person or account as the payee or the payee’s account, we may, in our sole discretion, refuse to accept or may return the Payment Order.

4. Bank Account Debiting and Crediting.

4.1. Bank Account Authorization. On or prior to your payroll direct deposit and/or payroll tax deposit date or other applicable settlement or due date, you authorize SP to initiate debit Entries to the Bank Account at the depository financial institution indicated by the routing number associated with the Bank Account that You provide to us (the “Bank”), and to debit the Bank Account in such amounts as are necessary to (i) fund payroll direct deposits; (ii) pay any fees or charges associated with the Payroll and HR Services, including, without limitation, finance charges; (iii) pay your payroll taxes; (iv) pay any debit, correcting, or reversing Entry initiated pursuant to the Payroll and HR Services which is later returned to us; (v) verify the Bank Account through a test deposit or debit authorization; and (vi) pay any other amount that is owing under or in connection with the Payroll and HR Services. You also authorize us to initiate credit Entries to the Bank Account in the event that we are required to return Unpaid Funds to you, as described in Section 11.1 of this Service Schedule. These authorizations shall remain in full force and effect until we have received written notice from you of termination of any such authorizations in such time and such manner as to afford us and the Bank a reasonable opportunity to act upon such notice. We are not responsible for determining whether the bank accounts of any payors or payees have deposit or withdrawal restrictions.

4.2. NACHA Rules. You acknowledge that the origination of Automated Clearing House (“ACH”) transactions to the Payroll Account (as defined below) and the transmission of funds via ACH transactions to the payee’s account must comply with applicable laws, rules, and regulations, including the NACHA Rules, as further described in Section 9 of this Service Schedule. Furthermore, you acknowledge compliance with NACHA rules includes the right for SP to audit the Client for compliance with the NACHA Rules, as specified by the NACHA rules.

5. Requirements for Bank Account Funds.

5.1. Your Obligation to Maintain Sufficient Funds. You will maintain in the Bank Account, as of each applicable payroll direct deposit date, payroll tax deposit date, or other settlement or due date and time, immediately available funds sufficient to cover all disbursements, fees, payroll taxes or any other amounts due (collectively, the “Amounts Due”) under the Payroll and HR Services. Your obligation to maintain sufficient funds in the Bank Account to cover Amounts Due is in effect at the time SP originates the applicable Entries for the Amounts Due and is unaffected by termination of the Payroll and HR Services. SP may set off any amounts you owe to us against any amounts we owe to you in connection with the reconciliation of Amounts Due.

5.2. Insufficiencies. If you do not maintain sufficient funds in the Bank Account to pay the Amounts Due at the times required, or if you refuse to pay the Amounts Due, then SP will not be able to pay out the Amounts Due to the applicable parties and will not be liable for any consequences or claims directly or indirectly arising from such failure to pay, and SP may (i) debit the Bank Account or any other account owned in whole or in part by you to pay disbursements, fees or charges, payroll taxes, or other amounts due; (ii) reverse any transactions initiated on your behalf; (iii) refuse to pay any unremitted payroll taxes to the applicable tax agencies, in which case the payroll tax liability will become your sole responsibility; (iv) refuse to perform further Payroll and HR Services; and/or (iv) immediately terminate the Payroll and HR Services. For any amounts due and unpaid, we may assess finance charges on such amounts and recover certain fees and costs of collection associated with such amounts.

6. Certain Agreements and Acknowledgments.

6.1. SP’s Payroll Account. Amounts withdrawn from the Bank Account for payroll direct deposits and payroll taxes (“Payroll Funds”) will be held by SP in accounts SP maintains with financial institutions (collectively, the “Payroll Account”) until such time as those payments are due to your employees and/or independent contractors and the appropriate taxing agencies, and no interest will be paid to you on these amounts. You acknowledge that SP is entitled to invest the Payroll Funds and that SP, in its principal capacity (and not as your agent), is entitled to all income and gains derived from or realized from such investments.

6.2. Indemnity. To the extent SP receives the Payroll Funds, SP shall indemnify and hold you harmless from and against any loss of any portion of the principal amount of the Payroll Funds (including any losses of principal resulting from the investment of the Payroll Funds) caused by SP while holding the funds in its Payroll Account. If SP incurs losses on the investment of the Payroll Funds or uses the Payroll Funds for any other purpose, SP will make the required payroll direct deposits and payroll tax deposits on your behalf by using SP’s own funds or other assets.

6.3. Rounding. SP calculates applicable payroll taxes in accordance with state requirements; however, due to differences in computational methods (e.g., rounding), it is possible that our computation of your applicable taxes may deviate by an immaterial fractional amount from the amount charged by an applicable taxing authority (typically a difference of less than $0.10 per taxing authority per payroll). Sometimes, this will result in SP withdrawing slightly less than what ultimately is required to be remitted to the applicable taxing authority. In this case, you agree to accept the accuracy of SP’s computation, however SP will cover the difference on your behalf and will not seek additional funds from you. Alternatively, this process may result in SP withdrawing slightly more than what ultimately is required to be remitted to the applicable taxing authority. In such instance, you agree to accept the accuracy of SP’s calculation, and that you are not entitled to a refund of or credit for the excess funds.

6.4. Excess Credits. In the event that SP erroneously credits an amount to the Bank Account in excess of the amount that should have been credited (the “Excess Credit Amount”), if any, then you shall promptly notify SP upon becoming aware of such erroneous credit. You authorize SP to debit any Excess Credit Amounts from the Bank Account, and if the Bank Account contains insufficient funds to cover the Excess Credit Amount, you agree to promptly refund the Excess Credit Amount to SP through other payment methods that SP may deem acceptable at its sole discretion.

7. ACH Origination.

7.1. Rejected Submissions. The Payroll Information you approve and submit it to SP will be applied for the creation, formatting, and transmission of Entries in accordance with the NACHA Rules and the UCC. SP may reject any Payroll Information or Entry which does not comply with the requirements in this Service Schedule, NACHA Rules, or the UCC, or with respect to which the Bank Account does not contain sufficient available funds to pay for the Entry. If any Payroll Information or Entry is rejected, SP will make a reasonable effort to notify you promptly so that you may correct such Payroll Information or request that SP correct the Entry and resubmit it. A notice of rejection of Payroll Information or an Entry (each, a “Rejection Notice”) may be delivered through any means, including via email. SP will have no liability to you for (i) the rejection of any Payroll Information or Entry or any claims directly or indirectly arising therefrom; or (ii) any delay in providing, or any failure to provide, you with a Rejection Notice, or any claims arising directly or indirectly therefrom. If you request that SP correct any Payroll Information or Entries on your behalf, SP will attempt to do to the extent correction may reasonably be undertaken; provided, however, that SP is not obligated to make any requested correction, and SP is not liable for any claims or other consequences that may directly or indirectly result from SP’s attempt to correct, or failure to correct, such Payroll Information or Entries.

7.2. Finality. After the Payroll Information has been approved by you and submitted to SP for the purposes of initiating a payroll-related transaction (such action, to “Submit,” and Payroll Information that has been submitted in the foregoing manner, “Submitted Payroll Information”) and received by SP, you may not be able to cancel or amend such Submitted Payroll Information. SP will use reasonable efforts to act on any cancellation or amendment requests it receives from you prior to transmitting the Entries to the ACH or gateway operator, but will have no liability if the cancellation or amendment is not effected. You will reimburse SP for any expenses, losses, fines, penalties, or damages SP may incur in effecting or attempting to effect such a request. Except for Entries created from Payroll Information that has been re-approved and re-Submitted by you in accordance with the terms of this Service Schedule, SP will have no obligation to retransmit a returned Entry to the ACH or gateway operator if SP complied with the terms of the Service Schedule with respect to the original Entry.

8. Payroll Processing Schedule.

8.1. Cut-Off Times. SP will process the Submitted Payroll Information and Entries in accordance with SP’s then-current processing schedule, provided that (i) the Submitted Payroll Information is received by SP no later than the applicable cut-off time for Submitted Payroll Information on a business day; and (ii) the ACH is open for business on that business day. If SP receives approved and Submitted Payroll Information after the applicable cut-off time for Submitted Payroll Information on a given business day, or if SP receives the Submitted Payroll Information on a non-business day, SP will not be responsible for failure to process the Submitted Payroll Information on that day. If any of the requirements of clauses (i) or (ii) of this paragraph are not satisfied, SP will use reasonable efforts to process the Submitted Payroll Information and transmit the Entries to the ACH with the next regularly-scheduled file created by SP (which will only occur on a business day on which the ACH is open for business).

8.2. Standard Processing Times. SP’s standard processing time for payroll and contractor payments is three (3) business days.

9. ACH Transactions and Entries.

9.1. NACHA Rules; UCC. Origination, receipt, return, adjustment, correction, cancellation, amendment, and transmission of Entries must be in accordance with the NACHA Rules, and, with respect to credit Entries which constitute Payment Orders, the UCC, as both are varied by this Agreement. You agree to comply with, and be bound by, the NACHA Rules and the UCC with respect to the Payroll and HR Services.

9.2. Provisional Credit Entries. Credit given by SP to you with respect to an ACH credit Entry is provisional until SP receives final settlement for such Entry through a Federal Reserve Bank. If SP does not receive such final settlement, SP is entitled to a refund from you in the amount credited to you in connection with such Entry, and the party making payment to you via such Entry (i.e., the Originator (as defined in the NACHA Rules) of the Entry) shall not be deemed to have paid you in the amount of such Entry.

9.3. Entry Reversals. Upon your request, SP will make a reasonable effort to reverse an Entry, but will have no responsibility for the failure of any other person or entity to honor such request, and SP cannot guarantee that the Entry will be successfully reversed. You agree to reimburse SP for any costs or expenses incurred in attempting to honor such a reversal request. If required under the NACHA Rules or the UCC, you must obtain a payee’s consent before attempting to reverse an Entry that was credited to such payee. Each time you initiate a request to reverse an Entry that was credited to a payee, you shall be deemed to have represented and warranted to SP that you have already obtained the payee’s consent for the reversal, if such consent is required under the NACHA Rules or the UCC.

9.4. Statements of Bank Account Activity. Under the NACHA Rules, which are applicable to ACH transactions, SP is not required to give next day notice to you of receipt of an ACH item and SP will not do so. However, SP will inform you of the receipt of payments through the periodic Bank Account transaction history report that SP makes available to you.

9.5. International ACH Transactions Not Supported. You acknowledge that SP does not engage in or support International ACH Transactions (“IATs”), as defined in the NACHA Rules. You represent and warrant that (i) the direct funding for the Entries originated by SP on your behalf does not come from or involve a financial agency office that is located outside the territorial jurisdiction of the United States; (ii) you will not instruct SP to create, originate, or transmit Entries that use IAT as the Standard Entry Class Code (as defined in the NACHA Rules), or are otherwise required to be IATs under the NACHA Rules; and (iii) you will not engage in any act or omission that causes or results in SP creating, originating, or transmitting an IAT or a payment that should have been categorized as an IAT pursuant to the NACHA Rules. SP may, in its sole discretion, temporarily or permanently suspend providing Payroll and HR Services to you, without liability, if SP has reason to believe that you have breached any of the foregoing representations and warranties in this paragraph. You acknowledge that you are the Originator (as defined in the NACHA Rules) of each Entry and assume the responsibilities of an Originator under the NACHA Rules.

9.6. Indemnity. You acknowledge that under the NACHA Rules and the UCC, SP, 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. You agree to indemnify SP for any claims which result, directly or indirectly, from a breach of any such warranty SP makes on your behalf, unless such breach results solely from SP’s own gross negligence or intentional misconduct. You also acknowledge that under the NACHA Rules and the UCC, SP is required to indemnify certain persons, including, without limitation, the ODFI (as defined in the NACHA Rules), for the Originator’s failure to perform its obligations thereunder. You agree to indemnify SP for any claims which result from the enforcement of such an indemnity, unless the enforcement results solely from SP’s own gross negligence or intentional misconduct.

10. Taxes; Liability.

10.1. SP Not Liable for Inaccurate Information. SP assumes no liability for any penalty, interest, or other claim that results from inaccurate or incomplete information that you, or your authorized representatives supply to us. You 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. Any penalty or interest incurred, or any other Claim that arises, due to inaccurate or incomplete information provided by you is solely your responsibility.

10.2. Retained Responsibility for Tax Obligations. Even though you have authorized SP to file payroll tax returns and make payroll tax payments on your behalf, you retain responsibility for the timely filing of employment tax returns and the timely payment of employment taxes for your employees. The IRS recommends that you enroll in the U.S. Treasury Department’s Electronic Federal Tax Payment System (“EFTPS”) to monitor your IRS account and ensure that timely tax payments are being made on your behalf. You may enroll in the EFTPS online at www.eftps.gov, or by calling (800) 555-4477 for an enrollment form. State tax authorities generally offer similar means to verify tax payments. You should contact the appropriate state offices directly for details.

11. Failed Direct Deposits.

11.1. Unpaid Funds. In the event that a direct deposit payroll payment fails to be paid to the payee and SP cannot ultimately successfully make a payment on your behalf to the payee, and the funds are returned to SP (“Unpaid Funds”), SP will notify You of such Unpaid Funds and provide you with the appropriate details related to those funds. In addition, SP will return the Unpaid Funds to you. You are responsible for contacting payees and/or otherwise resolving matters pertaining to Unpaid Funds.

11.2. Abandoned Property Laws. You acknowledge that you are responsible for complying with all applicable state unclaimed or abandoned property laws related to Unpaid Funds, and SP bears no liability or responsibility for claims directly or indirectly arising from state unclaimed or abandoned property laws, including any applicable penalties and/or interest. SP shall have no obligation to defend or otherwise indemnify you in the event of an audit, examination, assessment, or other enforcement action by a state related to the Unpaid Funds under its unclaimed or abandoned property laws.

12. Effect of Termination of the Payroll and HR Services.

In the event that you or SP terminates the Payroll and HR Services, from and after the date of termination, SP shall have no further obligation to provide Payroll and HR Services, including the completion of payroll tax filings on your behalf. Furthermore, SP has the right to terminate or suspend services for breach of the Nacha Operating Rules or upon notice from ODFI to terminate client services.  Notwithstanding the foregoing, in connection with a termination of Payroll and HR Services, you may have the option of making specific elections with respect to SP’s completion of certain final payroll tax filings (the “Final Payroll Tax Filings”) on your behalf.

13. Further Acknowledgments and Agreements.

13.1. Data Security Breaches. You agree to notify SP immediately of any data breach, attack, hacking incident, virus or malware attack affecting any of your systems.

13.2. No Third Party Uses. You shall use the Payroll and HR Services for your own internal business purposes and will not sell or otherwise provide, directly or indirectly, any of the Services or any portion thereof to any third party.

13.3. Indemnity for Breach. You agree to reimburse SP for all collection costs, including attorney’s fees, which SP may incur as a result of your failure to adhere to the terms and conditions of this Service Schedule.

Timekeeping and Swipeclock
Services Schedule

Version 1.0

The terms and conditions of this Service Schedule apply upon your election to utilize the Swipeclock time clock software and related services (the “Swipeclock Services”) in connection with any Payroll and HR Services and are applicable to the provision of those services. 

1. Swipeclock Services.

1.1. The Swipeclock Services are web-based services provided by SwipeClock LLC (“Swipeclock”) to assist businesses in managing their workforce. The SP Companies are resellers of the Swipeclock Services. The Swipeclock Services may be subject to additional terms, conditions, restrictions and requirements (collectively, “Additional Terms”), which may be made available on Swipeclock’s website or by other means (for instance, online terms of use, service terms, end user license agreements, privacy policies, and the like), and which may be updated periodically. You agree to be bound by all applicable Additional Terms (provided, that in the event of conflict between the terms of this schedule and any such Additional Terms, the terms of this schedule shall control).

1.2. The Swipeclock Services are made available for your use, and you are the author and owner of all data you produce using the Swipeclock Services. The SP Companies do not claim any ownership of the data and are not responsible, and shall not be required, to collect, capture, obtain, possess, transmit, use, or store information you produce using the Swipeclock Services.

2. Data Verification.

2.1. To the extent you supply timekeeping data to Swipeclock during your use of the Swipeclock Services, you are responsible for verifying any data provided to you by Swipeclock.

2.2. Prior to preparing payroll for you, we shall have the right to seek confirmation that your data matches the information sent to us by Swipeclock, provided that it remains your obligation to verify all such data and nothing herein shall require the SP Companies to take possession of, collect, capture, obtain, or store any such data. We may, on your behalf, inform Swipeclock of any discrepancies you identify for us.

3. Data Ownership and Data Transfer.

3.1. You are deemed the author and owner of all data you produce within the Swipeclock Services. Notwithstanding the foregoing, by using the Swipeclock Services, you grant Swipeclock a non-exclusive, perpetual, irrevocable, worldwide license to retain, use, copy, and distribute aggregated and anonymized data Swipeclock receives from you for any legitimate business purpose.

3.2. It is your responsibility to keep adequate records for audit purposes.

3.3. The Swipeclock Services and all copyrights, trademarks, trade secrets, source code and other intellectual property and proprietary rights throughout the world (“Intellectual Property Rights”) therein and thereto are and shall remain the exclusive property of Swipeclock. All rights in and to the Swipeclock Services not expressly granted to you or to the SP Companies in this schedule have been reserved by Swipeclock.

4. Warranties.

4.1. EXCEPT FOR THOSE WARRANTIES EXPRESSLY MADE IN THIS SCHEDULE OR UNDER THE MSA, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, TO THE OTHER PARTY IN CONNECTION WITH THIS SCHEDULE (INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF ACCURACY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY).

4.2. ALL SERVICES PROVIDED TO YOU ARE PROVIDED “AS IS” AND “WITH ALL FAULTS.” THERE IS NO GUARANTEE OR WARRANTY OF ANY KIND THAT SWIPECLOCK SERVICES WILL MEET YOUR NEEDS.

5. Limitation of Liability

5.1. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, THE SP COMPANIES ASSUME NO LIABILITY FOR ANY LOSS, INJURY, CLAIM, LIABILITY OR DAMAGE OF ANY KIND INCLUDING, WITHOUT LIMITATION, STATUTORY DAMAGES, LOSS OF BUSINESS, LOST PROFITS, LOST DATA OR FAILURE OF SECURITY RESULTING IN ANY WAY FROM THE YOUR USE OF THE SWIPECLOCK SERVICES, EXCEPT TO THE EXTENT CAUSED BY THE SP COMPANIES’ FRAUD, WILLFUL MISCONDUCT OR GROSS NEGLIGENCE. NEITHER PARTY SHALL BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND WHATSOEVER, WHETHER OR NOT FORESEEABLE (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES). IN NO EVENT SHALL THE TOTAL, CUMULATIVE LIABILITY OF ANY PARTY UNDER THIS SCHEDULE EXCEED THE AMOUNTS RECEIVED FROM YOU UNDER THIS SCHEDULE DURING THE 12 MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.

6. Confidentiality.

6.1. The Parties acknowledge that, in the course of performing their respective obligations pursuant to this Agreement, each will have access to and contact with Proprietary Information (as defined below) of the other or of Swipeclock. Each Party agrees that it will not, during the term or at any time thereafter, disclose to others, or use for its benefit or the benefit of others, any Proprietary Information of the other Party, or of Swipeclock, unless this Agreement expressly permits such use or disclosure or such disclosure is required by law. For purposes of this Agreement, “Proprietary Information” means any information relating to a Party or a Party’s affiliate, including all Intellectual Property Rights, customer lists and customer data, provided that Proprietary Information will not include information that: (a) is or becomes generally available to the public other than as a result of a wrongful disclosure, (b) was lawfully in the receiving Party’s possession prior to disclosure by the disclosing Party, as can be shown by the receiving Party’s written records, (c) is independently developed by the receiving Party without resort to the Proprietary Information, as can be shown by the receiving Party’s written records, (d) was or becomes available to the receiving Party on a non-confidential basis from a source other than the disclosing Party without a wrongful act, or (e) is required by law or judicial order, provided that the receiving Party shall give the disclosing Party prompt written notice of such required disclosure in order to afford the disclosing Party an opportunity to seek a protective order or other legal remedy to prevent the disclosure, and shall reasonably cooperate with the disclosing Party’s efforts to secure such a protective order or other legal remedy to prevent the disclosure.

7. Data Protection.

7.1. Definitions. Capitalized terms used herein shall have the meanings set forth in this Section.

7.1.1. “Authorized Persons” means Swipeclock’s, the SP Companies’, and your respective employees, contractors, agents, and auditors who have a need to know or otherwise access Personal Information to enable the Swipeclock, the SP Companies, and you to perform their respective obligations under this schedule, and who are bound by confidentiality and other obligations sufficient to protect Personal Information in accordance with the terms and conditions of this schedule.

7.1.2. “Personal Information” means information that you provide or for which you provide access to Swipeclock or the SP Companies, or information which Swipeclock or the SP Companies create or obtain on your behalf, in accordance with this schedule that: (i) identifies an individual (including, for example, names, signatures, addresses, telephone numbers, email addresses, and other unique identifiers); or (ii) can be used to authenticate an individual (including, without limitation, employee identification numbers, government-issued identification numbers, passwords or PINs, user identification and account access credentials or passwords, financial account numbers, credit report information, student information, biometric, genetic, health, or health insurance data, answers to security questions, and other personal identifiers), in case of both subclauses (i) and (ii), including Sensitive Personal Information as defined in sub-Section (6.1.c), below. Your business contact information is not by itself Personal Information.

7.1.3. “Sensitive Personal Information” means an individual’s: (i) government-issued identification number, including Social Security Number, driver’s license number, or state-issued identification number; (ii) financial account number, credit report information, or credit, debit, or other payment cardholder information, with or without any required security or access code, personal identification number, or password that permits access to the individual’s financial account; or (iii) biometric, genetic, health, or health insurance data.

7.1.4. “Data Breach” means any unauthorized access to or disclosure or acquisition of your Personal Information as defined under applicable law.

7.2. In connection with the performance of the Swipeclock Services under this schedule, each of the SP Companies and you will:

7.2.1. Comply with the terms and conditions set forth in this Schedule.

7.2.2. Comply with applicable laws and regulations in its creation, collection, receipt, access, use, storage, disposal, and disclosure of Personal Information.

7.2.3. Employ reasonable security measures to protect Personal Information in its possession or under its control in accordance with such Party’s respective information security policy as amended from time to time (“Information Security Policy”).

7.2.4. Be responsible for any unauthorized creation, collection, receipt, transmission, access, storage, disposal, use, or disclosure of Personal Information under its control or in its possession.

7.2.5. Not disclose Personal Information to any person other than its Authorized Persons, or the Swipeclock Authorized Persons, without your prior written consent unless required by applicable law, in which case, the SP Companies will use reasonable efforts and, to the extent permitted by applicable law, notify you before such disclosure or as soon thereafter as reasonably possible.

7.2.6. Use and disclose Personal Information only for the purposes for which you provide the Personal Information, or access to it, pursuant to the terms and conditions of this schedule, and not use or otherwise disclose or make available Personal Information for the SP Companies’ own purposes without your prior written consent. You acknowledge, however, that Swipeclock may aggregate, de-identify, or anonymize Personal Information and use such aggregated, de-identified, or anonymized data, which shall no longer be considered Personal Information, for its own research and development purposes.

7.3. You acknowledge and agree that you shall be solely responsible for:

7.3.1. Any unauthorized creation, collection, receipt, transmission, access, storage, disposal, use, or disclosure of Personal Information under your control or in your possession.

7.3.2. Complying with any applicable laws and regulations and use only secure methods, according to accepted industry standards, when transferring or otherwise making available Personal Information to Swipeclock.

7.4. Data Breach Procedures.

7.4.1. Each of the SP Companies and you maintain a cyber incident breach response plan in accordance with its Information Security Policy (“Cyber Incident Response Plan”) and will implement the procedures required under such plan on the occurrence of a Data Breach.

7.4.2. Upon the occurrence of a Data Breach, the Party experiencing the Data Breach (“Breached Party”) will notify the other Party of a Data Breach as soon as reasonably practicable after the Breached Party becomes aware of it.

7.4.3. Immediately following notification to the other Party of a Data Breach, the Parties will coordinate with each other, as necessary, to investigate the Data Breach in accordance with the Breached Party’s current Cyber Incident Response Plan.

7.4.4. To the extent permitted by applicable law and law enforcement, the Breached Party agrees that it will not inform any third party of any Data Breach without your prior consent, other than to inform a complainant that the matter has been forwarded to your legal counsel.

7.5. At least annually, each of the SP Companies and you will obtain a security controls review or audit performed by an independent third party based on recognized industry standards.

7.6. Upon the termination or expiration of this schedule, the SP Companies will promptly return to you or securely dispose of all Personal Information in their possession, except as they are required by applicable law to retain such Personal Information for legal or regulatory purposes. If we are not reasonably able to return or securely dispose of Personal Information, including, without limitation, Personal Information stored on backup media, we will continue to protect such Personal Information in accordance with the terms of this schedule until such time that it can reasonably return or securely dispose of such Personal Information. Such retention of Personal Information will be in accordance with applicable law and in no case will we retain biometric information for longer than 3 years.

7.7. You acknowledge that in the event that data is purged from Swipeclock’s systems, whether at your or our request or upon Swipeclock’s own initiative, purged data may continue to remain in offline backups and/or archives maintained by Swipeclock, and that a complete purge from all of Swipeclock’s equipment and media is likely impossible.

7.8. You acknowledge that despite commercially reasonable efforts, absolute security from any Internet-connected system is impossible.

7.9. You hereby acknowledge and agree (i) any biometric identifiers or biometric information of your employees that may be collected by your or on your behalf may only be collected with the explicit, written, informed consent of your employees, (ii) you, as owner of such biometric identifiers or biometric information, are required to obtain such explicit, written consent from your employees before such information is collected, (iii) you, as the employer, are responsible for all obligations relating to the collection of biometric identifiers or biometric information, and (iv) you, as the employer and owner of such biometric identifiers or biometric information, are responsible for all obligations relating to the possession, storage, transmission, protection, retention, destruction, disclosure, redisclosure, other dissemination,  of biometric identifiers or biometric information.  You acknowledge and agree that explicit, written consent will be obtained by you before you transmit, transfer, or direct any other Person to collect, capture, receive through trade, or otherwise obtain any biometric information on your behalf.  You further acknowledge and agree that the SP Companies shall not be deemed to be in possession of, or to collect, capture, purchase, receive through trade, otherwise possess, sell, lease, trade, otherwise profit from, disclose, redisclose, otherwise disseminate, use, store, transmit, or protect biometric identifiers or biometric information by virtue of your use of the Swipeclock Services.

7.10. You also acknowledge and agree that the SP Companies do not hereby undertake to provide legal advice of any kind or to make any representation or warranty regarding the enforceability or effectiveness of any notice provided by or consent obtained by you in connection with your use of the Swipeclock Services.

8. Software License Agreement.

8.1. Some products offered for sale by Swipeclock, including, without limitation, time clocks, voice clocks, biometric devices, downloadable software, packaged software, and other products, may contain intellectual property of Swipeclock such as source code, object code, or program documentation (“Swipeclock Software”). In such case, except where expressly superseded by another license agreement the following terms shall apply:

8.2. You acknowledge that any license to use the Swipeclock Software is non­exclusive and non-transferable, and is only for use on equipment provided or approved by Swipeclock, and only in conjunction with the use of the Swipeclock Services for your internal business purposes.

8.3. You hereby acknowledge and agree that you shall not (i) copy, in whole or in part, software or documentation provided to you hereunder, (ii) modify the software, (iii) reverse compile or reverse assemble all or any portion of the software, or (iv) rent, lease, distribute, sell or create derivative works of the software.

8.4. You agree that aspects of the licensed materials, including the specific design and structure of individual programs, constitute trade secrets and/or copyrighted material of Swipeclock. You agree not to disclose, provide, or otherwise make available such trade secrets or copyrighted material in any form to any third party without the prior written consent of Swipeclock. You agree to implement reasonable security measures to protect such trade secrets and copyrighted material. Title to software and documentation shall remain solely with Swipeclock.

8.5. During use of the Swipeclock Services, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Swipeclock Services. Any such activities, and any terms, conditions, warranties or representations associated with such activities, are solely between you and the applicable third-party. The SP Companies shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. We do not endorse any sites on the Internet that are linked through the Swipeclock Services. Such links are provided only as a matter of convenience, and in no event shall the SP Companies be responsible for any content, products, or other materials on or available from such sites. You recognize that certain third-party providers of ancillary software, hardware or services may require your agreement to additional or different licenses or other terms prior to the use of or access to such software, hardware or services.

8.6. You hereby acknowledge and agree that you shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws, (ii) send or store infringing, obscene, threatening, libelous or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights, (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs, (iv) interfere with or disrupt the integrity or performance of the Swipeclock Services or the data contained therein, or (v) attempt to gain unauthorized access to the Swipeclock Services or its related systems, networks, or data contained therein.

9.        Licesnse Agreement for Customization Work.

9.1. As part of the suite of services Swipeclock offers, it may from time to time create programming, scripts, or rules (“Customization Code”) designed to accommodate feature requests, programming needs, and/or customizations on your behalf. For example, you may need a custom script to accommodate an unusual shift schedule or non-standard overtime rules.

9.2. Customization Code may include, but is not limited to, all of the following: scripts, rules, classes, source code, object code, object definitions, schemas, report templates, and file formats, all of which serve a narrow purpose for you. However, the source code of the base application software constituting the core Swipeclock Services available to everyone and/or not created to customize the system for you is not Customization Code.

9.3. You expressly acknowledge and agree that programming for payroll-related tasks often makes use of common “building blocks,” or pieces of Customization Code which may be useful for solving similar problems for you. Accordingly, except for portions of such programming that consist solely of confidential raw data belonging to us or to you (e.g., a list of confidential pay rates formatted in the syntax of a scripting language), neither we nor you shall assert any claim to ownership of intellectual property intended to prohibit or encumber the re-use of any Customization Code for the benefit of any of our other clients to which it may be deemed useful.

10.     Further Commitments.

10.1. You hereby acknowledge and agree that, except where agreed upon in writing, (i) you shall not collect, store, process, transmit or send Social Security Numbers or other privileged data to the timekeeping website for any reason, notwithstanding the ability for the system to accept, or to be configured to accept, any such data, and (ii) you shall abstain from using such data for convenience (e.g., using the Social Security Number as a login or PIN on the time clock).

11. Indemnification.

11.1. You shall indemnify, hold harmless, and, at the SP Companies’ option, defend, the SP Companies, their service providers, agents, affiliates, and licensors, including but not limited to Swipeclock, from and against any and all claims, demands and actions, and any liabilities, damages and expenses (including court costs and attorney’s fees) (collectively “Liabilities”) resulting therefrom, caused by or relating to your (i) breach of the terms or conditions of this schedule; (ii) violation of applicable law, including all applicable privacy laws relating to, covering, or regulating, directly or indirectly, biometric information, data, and/or identifiers; (iii) violation of privacy rights or publicity rights; (vi) usage of any SwipeClock device or services in violation of this schedule; or (v) willful misconduct of you or your personnel. Your obligations under this paragraph shall exclude any and all claims, demands, actions, and Liabilities arising from the SP Companies’ negligent or more culpable acts or omissions, including any breach of this schedule.

Resources:

Swipeclock's Privacy Policy
Swipeclock's IL Biometric Resource Page