APS Legal Agreements

This Professional Services Agreement (this “PSA”) is by and between Automatic Payroll Systems, Inc. (“APS”, “we”, “us” and “our”) and the Customer (also referred to herein as “you”) identified on the applicable Order Form (as defined below). This Agreement is effective as of the date set forth on the applicable order document (including any online forms) provisioning or requesting the Services (as defined below) issued by APS or its authorized resellers which specify the Professional Services to be provided under this Agreement (each, an “Order Form”). You acknowledge and agree that no term in any order or other instrument entered into between Customer and any reseller of the Professional Services will modify this PSA unless previously consented to in writing by APS. APS and Customer may be referred to individually as a “Party” and together as, the “Parties.”

PLEASE REVIEW THIS PSA CAREFULLY. BY ACCEPTING THIS PSA OR OTHERWISE ACCESSING OR USING THE PROFESSIONAL SERVICES, YOU AGREE TO BE BOUND BY THIS PSA, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO YOU. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS PSA, YOU MAY NOT ACCESS OR USE THE PROFESSIONAL SERVICES.

THIS PSA REQUIRES FINAL AND BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THIS PSA, OR YOUR ACCESS TO OR USE OF THE PROFESSIONAL SERVICES, INCLUDING THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THIS PSA, AND YOU AGREE THAT ANY SUCH CLAIM WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS. PLEASE REVIEW SECTION 12 CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY CLAIM.

If you are entering into this PSA, registering for an APS account or using the Professional Services on behalf of an entity or other organization, references to “you” are to such entity or organization and you are accepting this PSA for that entity or organization and representing to APS that you have the authority to bind that entity or organization to this PSA (the term “Customer” will also refer to that entity or organization).

•  Provision of Professional Services. To the extent that Customer has purchased professional and implementation services (“Professional Services”), including without limitation any professional development services, professional tax services, setup services and additional configuration services related to the technology services and related software and service provided by APS pursuant to an applicable Order Form, APS will provide such Professional Services subject to the terms and conditions of such Order Form and this PSA.  The Order Form shall describe the Professional Services to be provided, the fees applicable to the Professional Services to be paid by Customer, and such additional provisions as the Parties may agree upon.  The Parties may mutually agree from time to time to additional Order Form(s) providing for additional Professional Services to be performed. Order Forms shall not be binding on APS until accepted by APS in writing and APS shall have no liability to Customer with respect to Order Forms that are not accepted.
• Manner of Performance. APS may replace or change employees and subcontractors in its sole discretion with other suitably qualified employees or subcontractors. APS shall have sole discretion and control over the work of all APS employees and subcontractors under this PSA and the manner in which it is performed. APS will arrange the schedule or performance of the work in compliance with the relevant Order Form and will handle all details and logistics of performance. 
• Customer Responsibilities.  Customer will provide all reasonable and timely cooperation as required by APS for the performance of the Professional Services. Customer will be responsible for, and assumes the risk of, any problems resulting from, the content, accuracy, completeness and consistency of all any data, materials and information supplied by Customer. Customer will provide, at no charge to APS, all information, materials, consents, networks or systems required for APS to perform the Professional Services, including without limitation, anything required by an applicable Order Form. APS shall not be liable for any delay caused by Customer’s failure to comply with this Section. If APS informs Customer of such failure, and Customer does not cure such failure within thirty (30) days, then (a) APS may terminate any incomplete Professional Services; and (b) in addition to any fees due under Section 10(c), Customer will pay all actual costs incurred by APS in connection with the cancelled Professional Services, provided that APS will make commercially reasonable efforts to mitigate such costs, which will not exceed the total fees applicable to such Professional Services. 
• Customer Data. All data or other information uploaded or provided by or on behalf of Customer in connection with the Professional Services (collectively, “Customer Data”) remains the property of Customer, as between APS and Customer. Customer represents, warrants and agrees that Customer has all rights to provide the Customer Data and other materials that Customer provides or makes available to APS. Customer acknowledges and agrees that it is solely responsible for all Customer Data and for its conduct while using the Professional Services. Customer acknowledges and agrees that: (i) it will evaluate and bear all risks associated with its use and distribution of all Customer Data; (ii) it is responsible for protecting and backing up the Customer Data; (iii) it is responsible for protecting the confidentiality of all Customer Data in its possession and control; and (iv) under no circumstances will APS be liable in any way for the content of any Customer Data, including, but not limited to, any errors or omissions in any Customer Data, or any loss or damages of any kind incurred as a result of Customer’s use, deletion, modification, or correction of any Customer Data. Customer has full discretion and control on how to store, protect, remove or delete any Customer Data and APS shall have no liability for any damages caused by such deletion or removal of or failure to store or protect Customer Data. Without limiting the foregoing, in the event that you request that APS provide any Customer Data (including employee and contractor information) to any third party or to any non-U.S. Customer location, you represent that you have acquired any consents or provided any notices required to transfer such content or information and that such transfer does not violate any applicable laws. By providing any Customer Data to APS, you hereby grant and will grant APS a nonexclusive, worldwide, royalty-free, fully paid up, transferable, sublicensable, license to copy, display, upload, perform, distribute, model, index, store, modify, create derivative works from, and otherwise use your Customer Data to provide the Professional Services. You understand that the technical processing and transmission of the Customer Data, may involve (1) transmissions over various networks; and (2) changes to conform and adapt to technical requirements of connecting networks or devices.  During the term of this PSA, Customer instructs APS to use the Customer Data for any lawful purpose, including (i) the sale, disclosure, access, provision and transmission of the Customer Data to its third party providers, for which APS may receive compensation,  (ii) the right to use the Customer Data to perform the Professional Services, and (iii) the right to use Customer Data to enhance the Professional Services offerings.
•  Fees.  Customer will pay all fees for Professional Services ordered under each applicable Order Form and pursuant to the payment terms set forth therein. Customer will reimburse APS for any expenses for which reimbursement is contemplated in the applicable Order Form.  Except as provided above, each Party will be responsible for its own expenses incurred in rendering performance under each Order Form. 
• Proprietary Rights.  Unless otherwise expressly agreed in any particular Order Form, ownership of all work product, developments, inventions, technology or materials provided under a Order Form by APS will be solely owned by APS, including all modifications or enhancements thereto, subject to the usage rights granted to Customer under the relevant Order Form, and the access rights to the Services as defined and provided for in the APS Subscription Agreement provided at https://apspayroll.com/legal/agreements/subscription. All rights not expressly granted by APS to Customer under this PSA or a relevant Order Form are reserved.  
• No Ownership of APS Background IP.  As between APS and Customer, APS shall continue to be the sole and exclusive owner of any discoveries, designs, developments, improvements, inventions (whether or not protectable under patent laws), works of authorship, information fixed in any tangible medium of expression (whether or not protectable under copyright laws), trade secrets, know-how, ideas (whether or not protectable under trade secret laws) or other intellectual property conceived, reduced to practice, created, derived, developed or made by APS (solely or jointly) (collectively, the “APS Background IP”).  Unless otherwise set forth in this PSA or the applicable Order Form, nothing in these Professional Services Terms grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party, any intellectual property rights or other right, title, or interest in or to the APS Background IP.
•     Confidentiality.
  
  •   Definition of Confidential Information. “Confidential Information” means all non-public information disclosed by a Party (“Discloser”) to the other Party (“Recipient”), whether orally, visually, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. APS’s Confidential Information includes, without limitation, the Services, pricing information, and the Mobile Apps. Customer’s Confidential Information includes, without limitation, the Customer Data.
  •   Protection of Confidential Information. Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in each case not less than a reasonable degree of care) to: (i) not use any Confidential Information of Discloser for any purpose outside the scope of this PSA; and (ii) limit access to Confidential Information of Discloser to those of its Authorized Users, employees and contractors who need that access for purposes consistent with this PSA and who have signed confidentiality agreements with Recipient containing protections not materially less protective of the Confidential Information than those in this PSA.
  •   Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser; (ii) was known to the Recipient before its disclosure by the Discloser without breach of any obligation owed to the Discloser; (iii) is received from a third party without breach of any obligation owed to Discloser; or (iv) is independently developed by the Recipient without use of or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.
• Term
  
  •   Term. This PSA shall commence upon the date set forth on the initial Order Form and will continue until all Professional Services under each applicable Order Form have been completed, in APS’ sole discretion, unless earlier terminated as provided below (the “PSA Term”).
  • Mutual Termination for Material Breach. If either Party is in material breach of this PSA or an Order Form, the non-breaching Party may terminate this PSA or a Order Form if the breaching Party fails to cure such breach within thirty (30) days following receipt of written notice thereof. Either Party may immediately terminate this PSA if the other Party ceases business operations, becomes insolvent, or becomes the subject of a petition in bankruptcy, receivership, liquidation, or assignment for the benefit of creditors, provided however that such termination shall not affect Customer’s obligation to pay any outstanding fees due to APS.
  • Effect of Termination. Upon termination of this PSA for any reason: (i) APS shall have no obligation to continue providing any Professional Services; and (ii) all of Customer’s payment obligations under each Order Form will immediately become due.
  • Survival. Any provision that, by its terms, is intended to survive the expiration or termination of this PSA shall survive such expiration or termination, including Sections 6, 7, 8, 9, 10(c), 10(d), 11, 12, 13, and 14. 
• Limitation of Liability. TO THE MAXIMUM EXTENT ALLOWED BY LAW, EXCEPT FOR EITHER PARTY’S VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, BREACH OF SECTION 7 OR BREACH OF SECTION 9: (i) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS OR COST OF COVER, OR INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS OCCASIONED BY OR RESULTING FROM ANY USE OF OR INABILITY TO USE THE PRODUCTS AND SERVICES PROVIDED UNDER THIS PSA, SUCH AS ANY MALFUNCTION, DEFECT OR FAILURE OF THE SERVICES OR ITS DELIVERY VIA THE INTERNET, EVEN IF SUCH PARTY HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE; AND (ii) SUBJECT TO CUSTOMER’S OBLIGATION TO PAY ALL FEES DUE UNDER THIS PSA, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS PSA EXCEED THE AMOUNT OF FEES RECEIVED BY APS FROM CUSTOMER UNDER THIS PSA IN THE 3-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENTS GIVING RISE TO LIABILITY AROSE. TO THE EXTENT ANY ADDITIONAL TERMS CONTAIN A LIMITATION OF LIABILITY PROVISION, THE LIMITATION OF LIABILITY SET FORTH THEREIN ARE EXCLUSIVE TO THE LIABILITY ARISING IN CONNECTION WITH THOSE SERVICES COVERED BY THE APPLICABLE ADDITIONAL TERMS, AND APS’ AGGREGATE LIABILITY UNDER ALL APPLICABLE ADDITIONAL TERMS AND THIS PSA SHALL NOT EXCEED THE AMOUNT SET FORTH IN THIS SECTION 10.
• Governing Law. This PSA is governed by the laws of the State of Louisiana (without regard to conflicts of law principles) for any dispute between the Parties or relating in any way to the subject matter of this PSA. Nothing in this PSA prevents either Party from seeking injunctive relief in a court of competent jurisdiction. The prevailing Party in any litigation is entitled to recover its attorneys’ fees and costs from the other Party . The Parties agree that neither the United Nations Convention on Contracts for the International Sale of Goods, nor the Uniform Computer Information Transaction Act (UCITA) shall apply to this PSA, regardless of the states in which the Parties do business or are incorporated.
• Arbitration.
  ALL CLAIMS ARISING IN CONNECTION WITH THIS PSA SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION RATHER THAN IN COURT. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.

  The arbitration shall be conducted by the American Arbitration Association (AAA) under its then-applicable Commercial Arbitration Rules or, as appropriate, its Consumer Arbitration Rules. The AAA’s rules are available at http://www.adr.org/. Payment of all filing, administration and arbitrator fees shall be governed by the AAA’s rules. The arbitration shall be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, you agree that such hearing shall be conducted in Shreveport, Louisiana or, if the Consumer Arbitration Rules apply, another location reasonably convenient to both Parties with due consideration of their ability to travel and other pertinent circumstances, as determined by the arbitrator. The decision of the arbitrator shall be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.

  EACH PARTY AGREES THAT ALL CLAIMS SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION OR OTHER SIMILAR PROCESS (INCLUDING ARBITRATION). IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL AND AGREE THAT SUCH CLAIM SHALL BE BROUGHT ONLY IN A COURT OF COMPETENT JURISDICTION IN SHREVEPORT, LOUISIANA. YOU HEREBY SUBMIT TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM.

  Notwithstanding anything to the contrary, you and APS may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect its intellectual property rights, whether in aid of, pending, or independently of the resolution of any dispute pursuant to the arbitration procedures set forth in this Section 13.
  If APS implements any material change to this Section 13, such change shall not apply to any claim for which you provided written notice to APS before the implementation of the change.

• Miscellaneous.
  
  •   Entire Agreement. This PSA (including all Order Forms) comprises the entire and exclusive agreement between the Parties with respect to its subject matter, supersedes any prior or contemporaneous proposals, statements, materials, negotiations or agreements, whether oral or written, related to its subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this PSA. No representation, promise, or inducement not included in this PSA is binding.
  •   No Waiver. The failure of either Party to require strict performance by the other Party of any provision hereof shall not affect the full right to require such performance at any time thereafter, nor shall the waiver by either Party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. Any waiver of the provisions of this PSA, or of any breach or default hereunder, must be set forth in a written instrument signed by the Party against which such waiver is to be enforced.
  • Amendment of Order Form. Unless otherwise set forth in a Order Form, no Order Form may be amended except in a writing executed by an authorized representative of each Party.
  • Assignment; Delegation. Customer may not assign this PSA, or sublicense, assign or delegate any right or obligation hereunder, by operation of law or otherwise without the prior written consent of APS. This PSA shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns. APS may, in its sole discretion, use vendors or contractors to help provide the Professional Services, and may change its use of such vendors or contractors without notice to you; provided, however, that APS will remain responsible for the acts and omissions of such vendors and/or contractors.  
  • Notices. All notices to Customer required or permitted under this PSA hereto will be in writing and delivered in person, by email to the address designated in the applicable Order Form, by overnight delivery service, or by registered or certified mail, postage prepaid with return receipt requested, and in each instance will be deemed given upon receipt. Notices to APS shall be made to the attention of the “Legal Department” and sent via mail to 3010 Knight Street, Suite 300, Shreveport, LA 71105, with a copy sent via email to contracts@apspayroll.com.
  • Export Compliance. The Professional Services and Confidential Information may be subject to export laws and regulations of the United States and other jurisdictions. Each Party represents that it is not named on any U.S. government denied-party list.  Neither Party will permit its personnel or representatives to access any Services in a U.S.-embargoed country or in violation of any applicable export law or regulation.
  •   Independent Contractors. The relationship between APS and Customer established by this PSA is solely that of independent contractors. Neither Party is in any way the partner or agent of the other, nor is either Party authorized or empowered to create or assume any obligation of any kind, implied or expressed, on behalf of the other Party, without the express prior written consent of such other Party.
  •   Enforceability and Force Majeure. If any provision of this PSA shall be held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of this PSA. Neither Party shall be liable for any failure to perform under this PSA to the extent due to any act of God, fire, casualty, flood, war, strike, lock out, failure of public utilities, injunction or any act, exercise, assertion or requirement of any governmental authority, epidemic, destruction of production facilities, insurrection or any other cause beyond the reasonable control of the Party invoking this provision.
  • No Additional Terms. APS rejects additional or conflicting terms of a Customer’s form purchasing document.
  • Order of Precedence. If there is an inconsistency between this PSA and a Order Form, the Order Form prevails.