APS Legal Agreements

This APS Subscription Agreement (this “Agreement”) 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 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 Services will modify this Agreement 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 AGREEMENT CAREFULLY. BY ACCEPTING THIS AGREEMENT OR OTHERWISE ACCESSING OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THIS AGREEMENT, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO YOU. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICES.

THIS AGREEMENT REQUIRES FINAL AND BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT, OR YOUR ACCESS TO OR USE OF THE SERVICES, INCLUDING THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THIS AGREEMENT, 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 11 CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY CLAIM.

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

1. 1. THE SERVICES.
      1. Provision of the Services. The “Services” means, collectively, the current and future technology services and related software and service provided by APS, including without limitation on any website and subdomain provided by APS, and other related software, content, and services, including all versions, upgrades, improvements, updates, enhancements, corrections, fixes, release notes and changes thereto. During the Term (as defined herein) and subject to Customer’s and its Authorized Users’ (as defined herein) compliance with the terms and conditions of this Agreement (including those in an applicable Order Form), APS hereby grants Customer a limited, non-exclusive, non-sublicensable, non-transferable, revocable right under each Order Form to access and use the Services as specified in each applicable Order Form for Customer’s bona fide internal business use in the ordinary course of Customer’s business (the “Internal Purpose”). 
      2. Additional Services. Without limiting the terms of this Agreement, if you purchase access to one or more of the Services which are governed by additional terms provided at https://apspayroll.com/legal/agreements/ (each, “Additional Terms”), then you also agree to be bound by such Additional Terms. Furthermore, you agree that your access to and use of the Services shall comply with and be subject to any acceptable use policy, and other guidelines instituted by APS (collectively, “Policies”).
      3. Privacy. In addition to this Agreement, the Privacy Policy at https://apspayroll.com/about-us/privacy-policy/ (“Privacy Policy”) applies to how APS may process information provided as part of the Services. You acknowledge and agree that by accessing or using the Services, APS may receive certain information about you, including personal data, as set forth in the Privacy Policy, and APS may collect, use, disclose, store, share, and process such personal data in accordance with such Privacy Policy. You further agree that, to the extent applicable, you hereby agree to the Biometric Privacy Policy at https://apspayroll.com/legal/agreements/#biometric-policy. 
      4. Professional Services. To the extent that Customer has purchased professional and implementation services (collectively, “Professional Services”) pursuant to an applicable and separate statement of work, such Professional Services shall be governed by the Professional Services Terms, provided at https://apspayroll.com/legal/agreements/#prof-services. 
      5. Mobile Apps. APS may make available mobile software applications for access to and use of certain components of the Services (collectively, “Mobile Apps”). Your access to and use of Mobile Apps is subject to and governed by this Agreement, and any Mobile Application End User License Agreements applicable thereto, which are each hereby incorporated herein. If any Mobile App is downloaded by you from the iTunes App Store, Google Play or any similar service (an “App Store”), your use of such Mobile App is further subject to your compliance in all material respects with the terms and conditions of the applicable usage rules set forth by such App Store. This Agreement is between you and APS only, and not with the proprietor of any App Store (a “Third Party Proprietor”), and no Third Party Proprietor is responsible for Mobile Apps and the contents thereof; however, any Third Party Proprietor and its subsidiaries are third-party beneficiaries of this Agreement with respect to Mobile Apps.   
      6. Customer–Owned Data. All data or other information uploaded or provided by or on behalf of Customer to the 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 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 on the Services 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 Services and interoperability with Third Party Offerings, including, without limitation, as set forth in this Agreement and the Privacy Policy and the Biometric Privacy Policy. You understand that the technical processing and transmission of the Services, including 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 Agreement, and in addition to Section 6.d, Customer authorizes 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 Services, and (iii) the right to use Customer Data to enhance the Services and other technology and offerings. During the term of this Agreement, Customer may export its Customer Data as allowed by functionality within the Services. 
      7. Affiliates and Authorized Users. Customer may authorize or permit its affiliates to access the Services by entering into an Order Form, establishing accounts or otherwise through Customer’s account, subject to compliance with applicable restrictions in the Agreement, at law and as otherwise communicated by APS, and this Agreement will apply as if such affiliate were a party to this Agreement and references herein to “you” or “Customer” shall also refer to such affiliate of Customer. Subject to each of their compliance with the terms and conditions of this Agreement and any applicable Additional Terms and Policies, employees and contractors of Customer who are authorized by Customer (collectively, “Authorized Users”) may access and use the Services on Customer’s behalf and pursuant to unique Credentials (as defined herein) which are associated with Customer’s account on the Services. Customer agrees that: (i) it is responsible for ensuring that all Authorized Users agree in a legally enforceable manner to abide by and fully comply with the terms and conditions of this Agreement and any applicable Additional Terms and Policies; (ii) it is solely responsible for delineating responsibilities and for all permissions controls applicable to each such Authorized User; (iii) such use is only in connection with the Internal Purpose; (iv) such use does not represent or constitute an increase in the scope of the licenses provided hereunder or under any applicable Additional Terms (including an increase in the number of authorized Authorized Users, if applicable); (v) Customer remains fully responsible and liable for any and all acts or omissions by such Authorized Users related to this Agreement and the Additional Terms and Policies; and (vi) the Services may only be accessed by Authorized Users who: (A) are at least thirteen (13) years of age or, if different in the applicable jurisdiction of the Authorized User, the legal age to form a binding contract; (B) have the right, authority and capacity to agree to and abide by this Agreement and any applicable Additional Terms and Policies; and (C) are not a person barred from using the Services under the laws of the applicable jurisdiction.
      8. Protection. “Credentials” means Authorized User accounts, passwords and other authentication credentials associated with the use of the Services by Customer and Authorized Users. Customer shall be solely responsible for protection of the confidentiality of Credentials and all activities undertaken using Credentials and any account, database, hardware, system or other facility within Customer’s custody or control (collectively, “Customer Facilities”). In the event that Customer becomes aware of any unauthorized access to or use of the Services through use of Customer Facilities, Customer shall promptly give written notice to APS of such breach and make reasonable efforts to eliminate it. Customer shall at all times implement appropriate security policies and procedures and access control methodologies to safeguard access to and use of the Services through Customer Facilities. All such measures shall comply with prevailing industry standards but in no case consist of less than reasonable care. 
      9. Customer Responsibilities. Customer: (i) must, prior to making any payments through the Services, verify the identity of each payee to whom it will make a payment via the Services; (ii) must verify and validate for accuracy all disbursement records and other reports prepared by APS and delivered to Customer, and immediately notify APS of any discrepancies; (iii) must verify for accuracy all payroll data and remittance of all non-tax payments; and (iv) is fully responsible for the accuracy and completeness of all Customer Data, and must obtain any required consents and provide such other notices as required by applicable law or its contracts to provide the Customer Data (including any personal information contained in the Customer Data) to APS for the uses contemplated by this Agreement, including so that APS can provide Customer Data to its third party providers. 
      10. Compliance with Laws. Each Party agrees to comply, and to cause its Authorized Users and affiliates to comply, with all applicable laws, including but not limited to, anti-bribery, anti-money laundering and other anti-corruption laws, and all applicable labor, wage and employment laws. Customer is solely responsible for compliance with any and all applicable laws, rules and regulations affecting its business, and for ensuring that it and its Authorized Users’ use of the Services comply with all export and import laws and regulations of the United States and any other applicable jurisdiction.  
      11. APS Support. APS shall maintain a Client Support Center (“CSC”) that will utilize a ticketing system to receive service requests and reports of software irregularities. Customer may report software or operator problems and seek assistance in the use of the Services. APS will maintain a product-trained and knowledgeable staff capable of rendering the Services set forth in this Agreement. APS will use all reasonable diligence to correct verifiable and reproducible errors when reported to the CSC.  The service level objective of the CSC will be to maintain a first time response rate of less than sixty (60) minutes a minimum of ninety percent (90%) of the time measured over three (3) consecutive months. 
      12. Third Party Offerings. APS may have services delivered or performed by third parties, including applications, services, websites or software that complement or interoperate with your use of the Services (collectively, “Third Party Offerings”), available to you for use in connection with the Services. Customer acknowledges and agrees that any use by Customer or any Authorized User of any Third Party Offerings may be subject to a separate agreement with such third party provider, which will govern Customer’s and each Authorized User’s use of such Third Party Offerings. APS makes no warranties of any kind and assumes no liability whatsoever for Customer’s or any Authorized User’s use of (or inability to use) Third Party Offerings, which are made available by APS “AS IS,” “AS AVAILABLE” and “WITH ALL FAULTS.” 
   2. SERVICE LEVEL AGREEMENT AND LIMITED WARRANTIES. 
      1. Availability Warranty. APS warrants to Customer that APS will maintain the availability of the Services as provided in the chart below (excluding maintenance outages, outages beyond APS’s reasonable control, and outages that result from any Customer technology issues).
      2. Credit for Availability Warranty.
         

         Less than 99.9% measured over 3 consecutive months = 3% of the 3-month fee for each full hour of an outage (beyond the foregoing warranty). *

         * Maximum amount of the credit is 100% of the fee for such 3 month period.

      3. CUSTOMER’S EXCLUSIVE REMEDY AND APS’S SOLE OBLIGATION FOR ITS FAILURE TO MEET THIS WARRANTY WILL BE FOR APS TO PROVIDE A FEE CREDIT FOR THE APPLICABLE MONTH, AS PROVIDED IN THE CHART ABOVE, PROVIDED THAT CUSTOMER NOTIFIES APS OF SUCH BREACH WITHIN THIRTY (30) DAYS OF THE END OF THE MONTH DURING WHICH SUCH FAILURE OCCURED. Any failure by APS to meet the above warranty will be determined by sole reference to APS’s records. 
   3. FEES.
      1. Fees and Payment. Customer agrees to have all fees owed to APS directly drafted from Customer’s bank account for all Services.  Except as otherwise set forth in an Order Form, fees will be drafted on or about the 10th of the month for the Services for the prior month (the “Billing Month”).  APS will provide on or about three (3) days advance notice of the amount to be drafted for the Billing Month, and the date of same. In the event of a rejected transaction for insufficient funds, Customer understands that APS may, at its discretion, (i) attempt to process the debit in the amount of the applicable paid product again and APS may separately impose an additional fee for each transaction returned for insufficient funds, as permitted by applicable law and (ii) require Customer to make payment via ACH or wire. Furthermore, Customer understands and agrees that the Funding and Acknowledgment Terms provided at https://apspayroll.com/legal/agreements/#funding-terms apply to any direct deposits and tax drafts required in connection with APS’ provision of the Services hereunder, and Customer agrees to comply with such Funding and Acknowledgment Terms. Unless otherwise set forth in an applicable Order Form, for any Services which are specific to Customer’s employee count, APS will charge for the Services based on the compensated employee count during each applicable month; provided however that if Customer does not run a payroll during that month, fees will be based on the employee count in the Order Form. 
      2. Subscriptions. If Customer and its Authorized Users are accessing a portion of the Services pursuant to a monthly, annual or other subscription (each, a “Subscription”), any termination of this Agreement or any applicable Order Form prior to the end of the then-current Subscription period will take effect at the end of the current Subscription period. If Customer does not timely cancel its Subscription, such Subscription will be renewed pursuant to Section 7.b without any additional action by Customer, and Customer authorizes APS to charge its designated payment method for such amounts.
      3. Taxes. The fees are exclusive of sales, use, withholding, VAT and other similar taxes, and Customer is responsible for payment of such taxes at the rate and in the manner for the time being prescribed by law. If APS has the legal obligation to pay or collect taxes for which Customer is responsible under this section, APS will invoice Customer and Customer will pay that amount unless Customer provides APS with a valid tax exemption certificate authorized by the appropriate taxing authority. This agreement contemplates one or more orders for the Services, which orders are governed by the terms of this agreement.
      4. Nonpayment.  Any invoiced amount not received by APS by the due date may accrue interest at the lower rate of 1.5% per month or the maximum rate permitted by law.  In addition, if an invoiced amount is 30 days or more past due, APS may suspend the Services until the amount is paid in full, provided APS has given Customer at least 30 days’ prior written notice that its account is past due.
   4. DISCLAIMERS. 
      1. EXCEPT AS EXPRESSLY PROVIDED HEREIN OR IN THE ADDITIONAL TERMS, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. WHILE APS TAKES REASONABLE PHYSICAL, TECHNICAL, AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICES, APS DOES NOT GUARANTEE THAT THE SERVICES CANNOT BE COMPROMISED. CUSTOMER UNDERSTANDS AND AGREES THAT (I) THE SERVICES MAY NOT BE UNINTERRUPTED, TIMELY, SECURE, VIRUS-FREE, OR ERROR-FREE, (II) APS IS NOT RESPONSIBLE OR LIABLE FOR ANY THIRD PARTY OFFERING, (III) APS IS NOT RESPONSIBLE OR LIABLE FOR INCOMPLETE OR INACCURATE CUSTOMER DATA IN THE SERVICES, AND (IV) ALL CONTENT MADE AVAILABLE THROUGH THE SERVICES IS FOR INFORMATIONAL PURPOSES ONLY. YOU ARE SOLELY RESPONSIBLE FOR CONFIRMING THE ACCURACY OF ALL CONTENT BEFORE TAKING OR OMITTING ANY ACTION. 
      2. Beta Disclaimer. ALL SERVICES LABELED ALPHA, BETA, PRE-RELEASE, TRIAL, PREVIEW OR SIMILARLY (“Beta Services”) ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS, AND CUSTOMER’S USE OF SUCH BETA SERVICES IS AT ITS SOLE RISK. APS has no obligations in connection with or in the course of providing the Beta Services. Any expectations and estimates regarding Beta Services are based on factors currently known and actual events or results could differ materially. APS does not assume any obligation to update any Beta Services. In addition, any information about APS’ roadmap outlines APS’ general product direction and is subject to change at any time without notice. It is for informational purposes only and shall not be incorporated into this Agreement or any contract or other commitment. APS undertakes no obligation either to develop the features or functionality provided in the Beta Services, or to include any such feature or functionality in a future release of the Services. Customer expressly acknowledges that the Beta Services have not been fully tested, and may contain defects or deficiencies which may not be corrected by APS. The Beta Services may undergo significant changes prior to release of the corresponding generally available final version. 
      3. No Advice or Endorsement. Customer hereby acknowledges, understands and agrees that: (i) any content and information provided on the Services (“Services Materials”) are not intended to be, and Customer and Authorized Users should not construe Services Materials as, legal, tax, investment, financial or other advice; (ii) nothing contained on the Services constitutes a solicitation, recommendation, endorsement or offer by APS to sell or buy anything; (iii) nothing on the Services constitutes professional and/or financial advice, nor do any Services Materials constitute a comprehensive or complete statement of the matters discussed or the law or regulations relating thereto; (iv) APS is not a fiduciary by virtue of Customer’s or any Authorized User’s use of or access to the Services and/or Services Materials; (v) Customer alone assumes the sole responsibility of evaluating the merits and risks associated with the use of or reference to Services Material before making any decisions based on such Services Material; (vi) APS shall not be held responsible or liable for any possible claim for damages arising from any decision Customer or its Authorized Users make based on information or Services Materials made available to Customer and/or Authorized Users. 
   5. CONFIDENTIALITY.
      1. 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.
      2. 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 Agreement; 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 Agreement and who have signed confidentiality agreements with Recipient containing protections not materially less protective of the Confidential Information than those in this Agreement. 
      3. 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.
   6. OWNERSHIP. 
      1. Reservation of Rights. APS and its licensors are the sole owners of the Services and the Mobile Apps, including all worldwide right, title and interest in and to the Services, including all worldwide patent rights (including patent applications and disclosures); copyright rights (including copyrights, copyright registration and copy rights with respect to computer software, software design, software code, software architecture, firmware, programming tools, graphic user interfaces, reports, dashboard, business rules, use cases, screens, alerts, notifications, drawings, specifications and databases); moral rights; trade secrets and other rights with respect to confidential or proprietary information; know-how; other rights with respect to inventions, discoveries, ideas, improvements, techniques, formulae, algorithms, processes, schematics, testing procedures, technical information and other technology; and any other intellectual and industrial property rights, whether or not subject to registration or protection; and all rights under any license or other arrangement with respect to the foregoing. Customer may not remove or modify any proprietary marking or restrictive legends in the Services or Mobile Apps. APS reserves all rights that are not expressly granted in this Agreement. The Services are copyrighted and protected by the laws of the United States and other countries, and international treaty provisions. 
      2. Feedback. If you elect to provide or make available to APS any suggestions, comments, ideas, improvements or other feedback relating to the Services (“Feedback”), APS shall own and be free to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights in your Feedback in any form and any medium (whether now known or later developed), without credit or compensation to you.
      3. Restrictions. 
         1. Customer may not: (a) use, reproduce, modify, adapt, create derivative works from, sublicense, publicly perform, publicly display, distribute, sell, lease, rent, make, have made, assign, pledge, transfer or otherwise grant rights to the Services, (b) provide use of the Services on a service bureau, rental or managed services basis, provide or permit other individuals or entities to create Internet “links” to the Services or “frame” or “mirror” the Services on any other server, or wireless or Internet-based device; (c) use the Service to store or transmit unsolicited marketing emails, libelous, or otherwise objectionable, unlawful, or tortious material, or to store or transmit infringing material in violation of third-party rights; (d) interfere with or disrupt the integrity or performance of the Services, including by disrupting the ability of any other person to use or enjoy the Services; (e) attempt to gain unauthorized access to the Services or its related systems or networks; (f) reverse engineer, disassemble, decompile, translate, or otherwise attempt to derive trade secrets, algorithms, or the source code, architectural framework, or data records, within or associated with the Services; (g) access the Services for the purpose of developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the Services; (h) violate any applicable local, state, provincial, federal or international law or regulation, or use the Services for any illegal, unauthorized or otherwise improper purposes, including to store or transmit malicious code, or to store or transmit material in violation of third-party privacy rights; (i) remove or obscure any proprietary notice that appears within the Services; (j) impersonate any person or entity, including APS personnel, or falsely state or otherwise misrepresent your affiliation with APS, or any other entity or person; (k) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Services; (l) take any action that imposes an unreasonable or disproportionately heavy load on the Services or its infrastructure; (m) use spiders, crawlers, robots, scrapers, automated tools or any other similar means to access the Services; or download, reproduce, or archive any substantial portion of the Services; or (n) use the Services to send payments directly or indirectly to, or for the benefit of, any person or entity that is located in any country or jurisdiction that is subject to economic sanctions, identified on any internationally-recognized government list of prohibition, or owned or controlled by any person or entity described in the foregoing or allow any such person or entity to use the Services for any purpose. 
         2. Customer will not upload, post, email, store, transmit, or otherwise make available any content that: (a) is illegal, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or otherwise objectionable; (b) may not be made available under any law or under contractual or fiduciary relationships (such as confidential or proprietary information learned as part of an employment relationship or under a non-disclosure agreement); (c) infringes any patent, trademark, trade secret, copyright, or other proprietary right of any party; (d) consists of unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, commercial electronic messages, or any other form of solicitation; (e) contains software viruses or any other code, files or programs designed to interrupt, destroy or limit the functionality of any software or hardware; (f) contains infringing, libelous, or otherwise unlawful or tortious material; or (g) consists of information that you know or have reason to know is false or inaccurate.
         3. APS may suspend the Services to Customer and any Authorized User if APS believes in good faith that Customer’s use of the Services poses an imminent threat to the security, availability or legality of the Services; in such event, APS will work with Customer to address the issue and restore Services as quickly as possible.
         4. APS’s failure to enforce any of these restrictions or guidelines shall not act as a waiver for any future enforcement, will not be considered a breach of this Agreement by APS, and does not create a private right of action for any other party.
      4. De-identified and Aggregated Data. Customer hereby agrees that APS may collect, generate, and use Customer Data that has been aggregated in a manner that does not reveal any personally identifiable information and cannot reasonably be used to identify Customer or any Authorized User as the source of such data, and that all such data shall be owned by APS.
   7. TERM AND TERMINATION. 
      1. Term. The term of this Agreement shall commence upon the earliest of (i) execution of an Order Form, or (ii) the date on which you begin using or accessing the Services, and will continue until all Order Forms have expired, unless earlier terminated as provided below (the “Term”).
      2. Term of Orders. Unless otherwise stated in an Order Form, (i) all Order Forms and Subscriptions thereunder will automatically renew for additional one-year periods unless a Party notifies the other of non-renewal at least sixty (60) days prior to the renewal date, (ii) an automatically renewing Order Form will remain unchanged from the prior term except for any pricing increase of which APS has notified Customer sixty (60) or more days before the renewal date, and (iii) upon automatic renewal, the per-unit pricing for any subscription Services will not increase by more than five (5%) over that in the prior term unless the prior pricing was clearly designated in the Order Form as promotional or one-time.
      3. Mutual Termination for Material Breach. If either Party is in material breach of this Agreement or an Order Form, the non-breaching Party may terminate this Agreement or an 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 Agreement 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. 
      4. Effect of Termination. Upon termination of this Agreement for any reason: (i) APS may retain Customer Data for so long as required to comply with applicable law and APS’ reporting and regulatory requirements; (ii) Customer must export all Customer Data prior to the termination of this Agreement and shall not be provided access to Customer after such termination; (ii) Customer and all of its Authorized Users shall immediately cease all use of and access to the Services; and (iii) all licenses granted herein and in any Additional Terms shall immediately cease. 
      5. Survival. Any provision that, by its terms, is intended to survive the expiration or termination of this Agreement shall survive such expiration or termination, including Sections 3, 4, 5, 6, 7.d, 7.e, 8, 9, 10, 11, and 12. 
   8. 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 5, BREACH OF SECTION 6.c, AND INDEMNIFICATION OBLIGATIONS UNDER 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 AGREEMENT, 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 AGREEMENT, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES RECEIVED BY APS FROM CUSTOMER UNDER THIS AGREEMENT 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 AGREEMENT SHALL NOT EXCEED THE AMOUNT SET FORTH IN THIS SECTION 8. 
   9. INDEMNIFICATION.
      1. APS Indemnification. APS shall indemnify, defend and hold Customer harmless against any loss, damage, cost, liability and expense (including reasonable attorneys’ fees) finally awarded by a court of competent jurisdiction or paid in settlement to the extent arising from any action or claim of a third party (collectively, “Claim”) asserting that Customer or Authorized Users’ use of the Services infringes the intellectual property rights of such third party; provided, however, that APS shall have no obligation to indemnify Customer from any Claim to the extent it arises from: (i) use of the Services by or on behalf of Customer in any manner that does not comply with the terms and conditions of this Agreement or applicable laws or regulations; (ii) use of the Services by or on behalf of Customer in combination with any hardware or software not provided or approved by APS; (iii) modifications to the Services made by or on behalf of Customer that are not authorized by APS; or (iv) any Customer Data (the foregoing subsections (i) through (iv), collectively, “Customer Acts”). In the event that any part of the Services becomes the subject of a Claim or APS reasonably determines that any part of the Services is likely to become the subject of a Claim, APS may, at its sole discretion: (1) procure for Customer a license as necessary for Customer to exercise the rights granted by APS under this Agreement; (2) modify or replace the infringing portion of the Services to avoid infringement; or (3) terminate the applicable Order Form and provide a pro rata refund of the fees paid by Customer to APS for the unused portion of the Term, as applicable, under such Order Form.  THIS SECTION CONTAINS CUSTOMER’S EXCLUSIVE REMEDIES AND APS’S SOLE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT.
      2. Customer Indemnification. Customer agrees that APS shall have no liability and Customer shall indemnify, defend and hold APS harmless against any Claim to the extent arising from: (i) Customer Acts or Customer’s breach of Section 6.c; (ii) any violation of applicable laws or regulations by Customer or Authorized Users; (iii) any breach by Customer or Authorized Users of any agreement governing use of Third Party Offerings; (iii) any use by Customer or Authorized Users of Customer Data except as permitted by this Agreement or otherwise and as separate from Customer’s or Authorized Users’ use of or access to the Services; and (iv) any instruction given by Customer to APS or any incomplete or incorrect information provided by Customer to APS . 
      3. Procedure. The indemnified Party shall: (i) give the indemnifying Party prompt written notice of any Claim; provided, however, that failure of the indemnified Party to give such prompt written notice shall not relieve the indemnifying Party of any obligation to indemnify pursuant to this Section 9, except to the extent the indemnifying Party has been prejudiced thereby; (ii) cooperate fully with the indemnifying Party, at the indemnifying Party’s expense, in the defense or settlement of any Claim; and (iii) give the indemnifying party sole and complete control over the defense or settlement of any Claim; provided, however, that any settlement must include a complete release of the indemnified Party without requiring the indemnified Party to make any payment or bear any obligation. 
   10. GOVERNING LAW AND FORUM.

This Agreement 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 agreement. Nothing in this agreement 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 Agreement, regardless of the states in which the Parties do business or are incorporated. 

1. 1. ARBITRATION. 

ALL CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT 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 11.
If APS implements any material change to this Section 11, such change shall not apply to any claim for which you provided written notice to APS before the implementation of the change.

1. MISCELLANEOUS.
   1. Entire Agreement. This Agreement (including all Order Forms, Additional Terms and Policies) 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 Agreement. No representation, promise, or inducement not included in this Agreement is binding. 
   2. Amendment of Order Form. Unless otherwise set forth in an Order Form, no Order Form may be amended except in a writing executed by an authorized representative of each Party
   3. 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 Agreement, 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. 
   4. Assignment; Delegation. Customer may not assign this Agreement, or sublicense, assign or delegate any right or obligation hereunder, by operation of law or otherwise without the prior written consent of APS. This Agreement 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 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.  To the extent consistent with applicable law, APS may also receive commissions, referral fees or other sources of revenue with respect to any use of the Services and/or certain Third Party Offerings. 
   5. Notices. All notices to Customer required or permitted under this Agreement 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.
   6. Export Compliance. The 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.
   7. Independent Contractors. The relationship between APS and Customer established by this Agreement 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.
   8. Enforceability and Force Majeure. If any provision of this Agreement 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 Agreement. Neither Party shall be liable for any failure to perform under this Agreement 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.
   9. No Additional Terms. APS rejects additional or conflicting terms of a Customer’s form purchasing document.
   10. Order of Precedence. If there is an inconsistency between this Agreement and an Order Form, the Order Form prevails.

These APS User Terms and Conditions (these “Terms”) are by and between Automatic Payroll Systems, Inc. (“APS”, “we”, “us” and “our”) and the individual accessing and using the Services (as defined below), and who may be authorized by an APS customer (“Customer”) to access the Services (such individuals, “Authorized Users”, and collectively with anyone else accessing the Services, “you”). These Terms are effective as of date you access the Services. APS and you may be referred to individually as a “Party” and together as, the “Parties.” 

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

THESE TERMS REQUIRES FINAL AND BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS, OR YOUR ACCESS TO OR USE OF THE SERVICES, INCLUDING THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THESE TERMS, 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 9 CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY CLAIM.

You represent and warrant that you: (a) are of legal age to form a binding contract; (b) have the right, authority, and capacity to agree to and abide by these Terms; and (c) are not a person barred from using the Services under the laws of any applicable jurisdiction. THE SERVICES ARE NOT INTENDED FOR USERS UNDER THE AGE OF 13 OR THE MINIMUM AGE REQUIRED BY YOUR JURISDICTION, AND SUCH USERS ARE EXPRESSLY PROHIBITED FROM SUBMITTING ANY PERSONAL DATA OR USING ANY ASPECT OF THE SERVICES, AND BY TAKING SUCH ACTIONS YOU AGREE, REPRESENT, AND WARRANT THAT YOU ARE 13 YEARS OF AGE, OR THE MINIMUM AGE REQUIRED BY YOUR JURISDICTION, OR OLDER.  

APS may provide notifications, whether such notifications are required by law or are for other business-related purposes, to you via email notice, text message (e.g. SMS or MMS), business or personal mail, written or hard copy notice, or through posting of such notice on the Services, as determined by APS in its sole discretion.

1. AUTHORIZED USERS. 
   1. Relationship. You acknowledge that Customer has separately agreed to the APS Subscription Agreement, provided athttps://apspayroll.com/legal/agreements/#subscription or otherwise agreed to between Customer and APS (the “Subscription Agreement”), and that APS has created an APS account for you pursuant to Customer’s instructions. We may request, instruct or direct Customer to take action regarding any violation of these Terms or any other policy of APS by you. 
   2. Customer Data. You acknowledge and agree that certain data or information you submit to the Services is “Customer Data” as defined in the Subscription Agreement and is owned by Customer. The Subscription Agreement provides Customer with many choices and control over that Customer Data. For example, Customer may enable or disable third party integrations, manage permissions, and request that APS share Customer Data with a third party, and these choices and instructions may result in the access, use, disclosure, modification or deletion of certain or all Customer Data. As between Authorized Users and Customers, the information you input into or otherwise make available through the Services is not confidential and may be used by Customer subject to these Terms, the Subscription Agreement and any other understanding directly between you and Customer. If you are an Authorized User that is also a contractor of Customer (i.e. not an employee), you acknowledge and agree that: (i) any action you take with respect to Customer Data in, through or from the Services is taken at the direction, instruction or with the authorization of Customer, and (iii) you may provide, access, process and use Customer Data solely to provide the aforementioned services to Customer in full compliance with these Terms and any agreement between you and Customer and applicable law. 
   3. Disclaimer. AS BETWEEN US AND CUSTOMER, YOU AGREE THAT IT IS SOLELY CUSTOMER’S RESPONSIBILITY TO (A) INFORM YOU AND ANY AUTHORIZED USERS OF ANY RELEVANT CUSTOMER POLICIES AND PRACTICES AND ANY SETTINGS THAT MAY IMPACT THE PROCESSING OF CUSTOMER DATA; (B) OBTAIN ANY RIGHTS, PERMISSIONS OR CONSENTS FROM YOU AND ANY AUTHORIZED USERS THAT ARE NECESSARY FOR THE LAWFUL USE OF CUSTOMER DATA AND THE OPERATION OF THE SERVICES; (C) ENSURE THAT THE TRANSFER AND PROCESSING OF CUSTOMER DATA PURSUANT TO THE CUSTOMER AGREEMENT IS LAWFUL; AND (D) RESPOND TO AND RESOLVE ANY DISPUTE WITH YOU AND ANY AUTHORIZED USER RELATING TO OR BASED ON CUSTOMER DATA, THE SERVICES OR CUSTOMER’S FAILURE TO FULFILL THESE OBLIGATIONS OR THOSE SET FORTH IN THE SUBSCRIPTION AGREEMENT.
2. THE SERVICES.
3. 1. Provision of the Services. The “Services” means, collectively, the current and future technology services and related software and service provided by APS, including without limitation on any website and subdomain provided by APS, and other related software, content, and services, including all versions, upgrades, improvements, updates, enhancements, corrections, fixes, release notes and changes thereto. During the Term (as defined herein) and subject to your compliance with the terms and conditions of these Terms, APS hereby grants you a limited, non-exclusive, non-sublicensable, non-transferable, revocable right to access and use the Services for your own internal and non-commercial purposes. 
   2. Additional Services. Without limiting the terms of these Terms, if Customer purchases access to one or more of the Services which are governed by additional terms provided at https://apspayroll.com/legal/agreements/ (each, “Additional Terms”), and provides you access with such Services, then you also agree to be bound by such Additional Terms to the extent applicable to you. Furthermore, you agree that your access to and use of the Services shall comply with and be subject to any acceptable use policy, and other guidelines instituted by APS (collectively, “Policies”).
   3. Privacy. In addition to these Terms, the Privacy Policy at https://apspayroll.com/about-us/privacy-policy/ (“Privacy Policy”) applies to how APS may process information provided as part of the Services. You acknowledge and agree that by accessing or using the Services, APS may receive certain information about you, including personal data, as set forth in the Privacy Policy, and APS may collect, use, disclose, store, share, and process such personal data in accordance with such Privacy Policy. 
   4. Mobile Apps. APS may make available mobile software applications for access to and use of certain components of the Services (collectively, “Mobile Apps”). Your access to and use of Mobile Apps is subject to and governed by these Terms, and any Mobile Application End User License Agreements applicable thereto, which are each hereby incorporated herein. If any Mobile App is downloaded by you from the iTunes App Store, Google Play or any similar service (an “App Store”), your use of such Mobile App is further subject to your compliance in all material respects with the terms and conditions of the applicable usage rules set forth by such App Store. These Terms is between you and APS only, and not with the proprietor of any App Store (a “Third Party Proprietor”), and no Third Party Proprietor is responsible for Mobile Apps and the contents thereof; however, any Third Party Proprietor and its subsidiaries are third-party beneficiaries of these Terms with respect to Mobile Apps.   
   5. Trademarks.  You may not use the APS names, brands, trademarks, service marks or logos that APS makes available on the Services (“Marks”). APS claims trademark protection over all such Marks and you will not use the Marks except as expressly authorized herein. You will not remove or alter the Marks or any proprietary notices on the Services. The Marks may not be included in or as part of any registered corporate name, any other logo, or service or product name.  You may not create any derivative works of the Marks or use the Marks in a manner that creates or reasonably implies an inaccurate sense of endorsement, sponsorship, or association with APS.  You will not otherwise use business names or logos in a manner that can mislead, confuse, or deceive any third party. All use of the Marks and all goodwill arising out of such use, will inure to APS’ benefit.
   6. Third Party Offerings. APS may make services delivered or performed by third parties, including applications, services, websites or software that complement or interoperate with your use of the Services (collectively, “Third Party Offerings”), available to you for use in connection with the Services. You acknowledge and agree that any use by you of any Third Party Offerings may be subject to a separate agreement with such third party provider, which will govern your use of such Third Party Offerings. APS makes no warranties of any kind and assumes no liability whatsoever for your use of (or inability to use) Third Party Offerings, which are made available by APS “AS IS,” “AS AVAILABLE” and “WITH ALL FAULTS.” 
4. PROPRIETARY RIGHTS
5. 1. You grant APS and its service providers a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made all content (in any form and any medium, whether now known or later developed) that you provide in connection with the Services. You acknowledge and agree that the technical processing and transmission of data associated with the Services, may require: (i) transmissions over various networks and across borders; and (ii) modifications to conform, connect, and adapt to technical requirements of networks or devices. You hereby agree that APS may collect, generate, and use data that has been aggregated in a manner that does not reveal any personally identifiable information and cannot reasonably be used to identify you as the source of such data, and that all such data shall be owned by APS. 
   2. The Services provided to you hereunder or available to you through the Services are licensed, not sold, and APS retains and reserves all rights not expressly granted in these Terms. You acknowledge and agree that, as between you and APS, APS and its licensors owns all rights, title and interest (including all intellectual property rights) in the Services and all data, content, and other materials within the Services. The Services are protected by U.S. and international copyright and other intellectual property laws and treaties. APS reserves all rights not expressly granted to you in these Terms.
   3. You may not share your account or password with anyone. You are fully responsible for all activities that occur under your account. You agree to notify APS immediately of any unauthorized use of your account or password or any other similar breach of security. If your account remains inactive for three months or longer, APS reserves the right to suspend or terminate your account, with or without notice to you, and delete your content all without liability.
   4. If you elect to provide or make available to APS any suggestions, comments, ideas, improvements or other feedback relating to the Services (“Feedback”), APS shall own and be free to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights in your Feedback in any form and any medium (whether now known or later developed), without credit or compensation to you. 
6. USER CONDUCT AND RESTRICTIONS
7. 1. In your use of the Services, you will not: 
      1. use, reproduce, modify, adapt, create derivative works from, sublicense, publicly perform, publicly display, distribute, sell, lease, rent, make, have made, assign, pledge, transfer or otherwise grant rights to the Services, except as expressly permitted under these Terms; 
      2. reverse engineer, disassemble, decompile, translate, or otherwise attempt to derive trade secrets, algorithms, or the source code, architectural framework, or data records, within or associated with the Services; 
      3. interfere with or disrupt the integrity or performance of the Services, including by disrupting the ability of any other person to use or enjoy the Services; 
      4. provide use of the Services on a service bureau, rental or managed services basis, provide or permit other individuals or entities to create Internet “links” to the Services or “frame” or “mirror” the Services on any other server, or wireless or Internet-based device; 
      5. access the Services for the purpose of developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the Services; 
      6. violate any applicable local, state, provincial, federal or international law or regulation, or use the Services for any illegal, unauthorized or otherwise improper purposes, including to store or transmit malicious code, or to store or transmit material in violation of third-party privacy rights; 
      7. remove or obscure any proprietary notice that appears within the Services;
      8. impersonate any person or entity, including APS personnel, or falsely state or otherwise misrepresent your affiliation with APS, or any other entity or person;
      9. forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Services;
      10. take any action that imposes an unreasonable or disproportionately heavy load on the Services or its infrastructure; or
      11. use spiders, crawlers, robots, scrapers, automated tools or any other similar means to access the Services; or download, reproduce, or archive any substantial portion of the Services.
   2. You will not upload, post, email, store, transmit, or otherwise make available any content that: 
      1. is illegal, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or otherwise objectionable; 
      2. may not be made available under any law or under contractual or fiduciary relationships (such as confidential or proprietary information learned as part of an employment relationship or under a non-disclosure agreement); 
      3. infringes any patent, trademark, trade secret, copyright, or other proprietary right of any party; 
      4. consists of unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, commercial electronic messages, or any other form of solicitation; 
      5. contains software viruses or any other code, files or programs designed to interrupt, destroy or limit the functionality of any software or hardware; 
      6. contains infringing, libelous, or otherwise unlawful or tortious material; or 
      7. consists of information that you know or have reason to know is false or inaccurate.
   3. APS’s failure to enforce any of these restrictions or guidelines shall not act as a waiver for any future enforcement, will not be considered a breach of these Terms by APS, and does not create a private right of action for any other party.
8. DISCLAIMERS. 
9. 1. EXCEPT AS EXPRESSLY PROVIDED HEREIN OR IN THE ADDITIONAL TERMS, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. WHILE APS TAKES REASONABLE PHYSICAL, TECHNICAL, AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICES, APS DOES NOT GUARANTEE THAT THE SERVICES CANNOT BE COMPROMISED. YOU UNDERSTAND AND AGREE THAT (I) THE SERVICES MAY NOT BE UNINTERRUPTED, TIMELY, SECURE, VIRUS-FREE, OR ERROR-FREE, (II) APS IS NOT RESPONSIBLE OR LIABLE FOR ANY THIRD PARTY OFFERING ISSUES, (III) APS IS NOT RESPONSIBLE OR LIABLE FOR INCOMPLETE OR INACCURATE INFORMATION OR DATA IN THE SERVICES, AND (IV) ALL CONTENT MADE AVAILABLE BY APS THROUGH THE SERVICES IS MADE AVAILABLE FOR INFORMATIONAL PURPOSES ONLY. YOU ARE SOLELY RESPONSIBLE FOR CONFIRMING THE ACCURACY OF ALL CONTENT BEFORE TAKING OR OMITTING ANY ACTION. 
   2. Beta Disclaimer. ALL SERVICES LABELED ALPHA, BETA, PRE-RELEASE, TRIAL, PREVIEW OR SIMILARLY (“Beta Services”) ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS, AND YOUR USE OF SUCH BETA SERVICES IS AT YOUR SOLE RISK. APS has no obligations in connection with or in the course of providing the Beta Services. Any expectations and estimates regarding Beta Services are based on factors currently known and actual events or results could differ materially. APS does not assume any obligation to update any Beta Services. In addition, any information about APS’ roadmap outlines APS’ general product direction and is subject to change at any time without notice. It is for informational purposes only and shall not be incorporated into these Terms or any contract or other commitment. APS undertakes no obligation either to develop the features or functionality provided in the Beta Services, or to include any such feature or functionality in a future release of the Services. You expressly acknowledge that the Beta Services have not been fully tested, and may contain defects or deficiencies which may not be corrected by APS The Beta Services may undergo significant changes prior to release of the corresponding generally available final version. 
   3. No Advice or Endorsement. You hereby acknowledge, understand and agree that: (i) any content or information provided on the Services (“Services Materials”) are for informational purposes only; (ii) Services Materials are not intended to be, and you should not construe Services Materials as, legal, tax, investment, financial or other advice; (iii) nothing contained on the Services constitutes a solicitation, recommendation, endorsement or offer by APS to sell or buy anything; (iv) nothing on the Services constitutes professional and/or financial advice, nor do any Services Material constitute a comprehensive or complete statement of the matters discussed or the law or regulations relating thereto; (v) APS is not a fiduciary by virtue of your use of or access to the Services and/or Services Materials; (vi) you alone assume the sole responsibility of evaluating the merits and risks associated with the use of or reference to Services Material before making any decisions based on such Services Material; (vii) APS shall not be held responsible or liable for any possible claim for damages arising from any decision you make based on information or Services Material made available to you. 
10. CONFIDENTIALITY.
11. 1. 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. 
    2. 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 these Terms; 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 these Terms and who have signed confidentiality agreements with Recipient containing protections not materially less protective of the Confidential Information than those in these Terms. 
    3. 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.
12. TERM AND TERMINATION. 
13. 1. The term of these Terms shall commence upon the date on which you being using or accessing the Services, and will continue until the earlier of: (i) your access to the Services has been terminated by Customer or us; and (ii) the termination or expiration of the Subscription Agreement (the “Term”). Please contact Customer if, at any time or for any reason, you with to terminate your account, including due to a disagreement with any updates to these Terms. 
    2. If you violate these Terms, APS may, with or without notice to you, immediately suspend or terminate your access and use of the Services.
    3. APS reserves the right at any time to modify, suspend, or discontinue the Services (or any portion thereof) with or without notice, and APS shall not be liable to you or any third party for any such modification or discontinuance.
    4. Upon termination of these Terms for any reason: (i) APS, in its sole discretion, may remove and discard your content and information; (ii) you will immediately cease your use of the Services; and (iii) any provision that, by its terms, is intended to survive the expiration or termination of these Terms shall survive such expiration or termination.  Further, you agree that that APS shall not be liable to you or any third party for any termination of your account or access to the Services. 
14. LIMITATION OF LIABILITY. 
15. 1. APS SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA OR GOODWILL, OR COST OF COVER, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS, OR FINANCIAL LOSS, EVEN IF APS HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT SHALL APS TOTAL LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING FROM OR RELATING TO THESE TERMS OR YOUR ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) THE SERVICES OR CONTENT EXCEED ONE HUNDRED DOLLARS ($100) IN THE AGGREGATE.
    2. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.  INSOFAR AS APPLICABLE LAW PROHIBITS ANY LIMITATION ON LIABILITY HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION WILL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO AS TO MAKE THE LIMITATION COMPLIANT WITH APPLICABLE LAW.  THE PARTIES AGREE THAT THE LIMITATIONS ON LIABILITIES SET FORTH HEREIN ARE AGREED ALLOCATIONS OF RISK AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. 
    3. The Services made available to Authorized Users on behalf of our Customers are business tools intended for use by businesses and organizations for employment and business purposes, and not for consumer purposes. To the maximum extent permitted by law, you hereby acknowledge and agree that consumer laws do not apply to the use of such Services, to these Terms, or to your relationship with APS; provided that, if any consumer laws do apply and cannot otherwise be lawfully excluded, nothing in these Terms will restrict, exclude or modify any statutory warranties, guarantees, rights or remedies you have, and our liability is limited (at our sole option) to the replacement, repair or resupply of the subject Services.
16. GOVERNING LAW AND FORUM.

17. These Terms are 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 these Terms. Nothing in these Terms 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 these Terms, regardless of the states in which the Parties do business or are incorporated. 

18. ARBITRATION. 
19. 1. ALL CLAIMS ARISING IN CONNECTION WITH THESE TERMS 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.
    2. 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.
    3. 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.
    4. 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 9.
    5. If APS implements any material change to this Section 9, such change shall not apply to any claim for which you provided written notice to APS before the implementation of the change.
20. MISCELLANEOUS.
21. 1. Entire Agreement. These Terms (including all Additional Terms and Policies) 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. You are not relying on any representation concerning this subject matter, oral or written, not included in these Terms. No representation, promise, or inducement not included in these Terms is binding. 
    2. 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 these Terms, 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. 
    3. Assignment; Delegation. You may not assign these Terms, or sublicense, assign or delegate any right or obligation hereunder, by operation of law or otherwise without the prior written consent of APS. These Terms 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 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. To the extent consistent with applicable law, APS may also receive commissions, referral fees or other sources of revenue with respect to any use of the Services and/or certain Third Party Offerings. 
    4. Enforceability and Force Majeure. If any provision of these Terms 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 these Terms. Neither Party shall be liable for any failure to perform under these Terms 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.
    5. Consent to Electronic Delivery; Electronic Signature.
       1. 1. Electronic Signature. You may be prompted to sign documents using the e-signature tools set forth in the Services, and you hereby consent to electronically sign such documents, including employment-related documents, and agree that your electronic signature is the legal equivalent of your manual or handwritten signature. By confirming your signature or otherwise electronically signing a document on the Services, you expressly affirm that: (i) you are able to access and view the relevant document that you are electronically signing, (ii) you consent to conduct business electronically with respect to the transaction contemplated by the document, (iii) you agree to the use of an electronic signature for the document, and (iv) you are authorized to enter into the relevant agreement and be bound by its terms. 
          2. Electronic Delivery. You agree that Customer and APS may electronically deliver Service- or employment-related documents and/or disclosures to you (including for any persons whom you are the legal guardian), which may include tax and health insurance notices, as applicable. You also authorize APS to receive such Service- and employment- related documents and/or disclosure electronically on your behalf and agree to be notified of such notices electronically.
          3. Withdrawing Consent. You are entitled to withdraw your consent to electronic signatures or electronic disclosures at any time by contacting Customer or declining to access or use the Services. However, you acknowledge that if you withdraw consent: (i) APS cannot guarantee that you will be able to obtain relevant disclosures, whether in paper or electronic form, nor maintain full access to the Services; (ii) you may be required to obtain paper copies of your documents and notices directly from Customer; (iii) you or Customer may incur additional fees for requesting paper copies, to the extent permitted by applicable law; (iv) you will not be able to withdraw your consent relating to electronic signatures and electronic disclosures which have already been provided or executed pursuant to your prior consent; and (v) if you deiced to withdraw your consent, the legal validity and enforceability of prior electronic signatures and disclosures will not be affected. 
          4. Enforceability. You acknowledge that, under applicable laws, some documents require a manual or handwritten signature, and that, subject to Service-specific APS obligations set forth in applicable Additional Terms, it is your responsibility to determine whether a document requires a manual or handwritten signature. You understand that you are solely responsible with respect to the content, validity, or enforceability of any document, and that APS makes no representations or warranties regarding the validity or enforceability of your documents signed using electronic signature.
          5. Minimum System Requirements. The minimum system requirements for using the Services may change over time. The current system requirements are as follows: 

        

       Hardware: Hard drive

       Devices: iOS; Android; Windows

       Operating System: Windows 8, 8.1, 10, 11; macOS

       Browsers: Internet Explorer 8, 9, 10, 11; Chrome; Firefox; Safari (MacOS) 

       Software: Adobe Acrobat or similar software to view PDF files

       Printer (for printed copies)

These Funding and Acknowledgment Terms (these “Funding Terms”) are a part of the APS Subscription Agreement, available at https://apspayroll.com/legal/agreements/#subscription, and are hereby incorporated into the APS Subscription Agreement by reference. All capitalized terms used but not defined in herein shall have the meanings set forth in the APS Subscription Agreement. These Funding Terms set forth the additional terms and conditions under which Customer will fund amounts required pursuant to the Services. In the event of conflict between these Funding Terms and the APS Subscription Agreement, the terms and conditions of these Funding Terms shall take precedence. All terms of the APS Subscription, including without limitation all disclaimers, limitations of liability, agreements and indemnities, apply to these Funding Terms. 

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

1. 1. Tax Payment and Processing. APS agrees that it will: (i) directly draft from Customer’s designated Demand Deposit Account (“DDA”), hold in its Tax Trust Account (“Trust Account“), and deposit with an appropriate authorized depository on or before the statutory deadlines, the required Federal, State, and Local payroll tax amounts; (2) prepare and file required Federal, State, and Local payroll tax forms and reports; (3) provide electronic copies of the tax forms or equivalent reports of the data filled. APS is not a responsible party for payment of taxes to any Federal, State, or Local tax authority, except to the extent that APS is holding funds in trust for payment of said taxes. APS assumes responsibility only for interest charges and/or penalties, which result from the negligence of APS. APS does not accept responsibility for failure to make deposits or filings if it is not provided with adequate or timely information or sufficient funds. Customer agrees to have APS fees directly drafted from their DDA for all Services. As additional consideration, Customer hereby assigns to APS any benefits, including interest, derived on the funds in the Trust Account. APS is not a responsible party for the application of or the issuing of tax identification numbers with Federal, State and Local taxing authorities. APS is not responsible for any pre-existing errors or similar matters arising prior to commencement of the Services by APS or for any errors that may occur as a result of Customer not providing APS with the necessary or accurate information to provide the Services. 
   2. Funding. Customer agrees to submit and release payroll batches to APS on or before 3:00 p.m., Central Standard Time, at least two (2) banking days prior to the payroll check date. As a result of the submission and release of a payroll batch, Customer authorizes APS to initiate electronic debit and credit Automated Clearing House “ACH” entries, pursuant to Section 6 below to the designated DDA provided upon setup and any accounts identified subsequent to this Agreement as authorized by the APS bank change authorization form. APS reserves the right to require Customer to initiate a direct wire, per wire instructions provided, or process via an approved Drawdown Fedwire with a settlement date of one (1) banking day prior to the payroll check date in the event that the payroll tax liability is in excess of $100,000, any single direct deposit entry is in excess of $100,000, the total net direct deposit batch is in excess of the then current APS ACH risk management policy, or other due diligence concerns. Customer agrees to have, upon payroll submission, the funds available in the DDA for all ACH entries including but not limited to payroll tax liabilities, employee payments, processing charges, and any non-sufficient funds “NSF” or ACH return charges to prevent any issues in funding. Client further agrees to provide its banking institution with any instructions required by its bank agreement to complete the authorization for electronic transactions to be processed in accordance with this Agreement. If Customer’s bank refuses to honor the ACH debit entries, APS reserves the right to assess NSF and/or return charges. These charges shall be assessed for each returned transaction the greater of $250.00 or 2% of the amount returned. In the event that APS receives notification of an NSF or ACH return transaction for a debit entry, APS will notify Customer of the amount required to be wired and will provide wiring instructions. Should Customer fail to wire the required amount of funds to cover the return and additional charges are assessed as a result of the return, APS reserves the right to (a) reverse all ACH transactions originated related to the returned entry, (b) apply any funds held in reserve on behalf of Customer to the balance due APS and (c) immediately terminate this Agreement, whereupon Customer will immediately become responsible for all payroll tax deposits, required agency filings, and other liabilities resulting from the return or default, including but not limited to other unfunded obligations collection costs, interest and attorney fees. Account maintenance charges for individual direct deposit credit entries that are returned will be calculated based on the number of maintenance items returned at a minimum service fee of $5.00 per returned item.
   3. Tax Notices. Customer agrees to immediately provide APS with copies of any notices or correspondence received from any Federal, State, or Local authority with respect to any tax return or deposit made by APS. Customer acknowledges that APS tax filing services are based upon information supplied by Customer (including proof of Federal, State and Local tax identification numbers, deposit frequencies, and tax rates) and the results of APS payroll services.
   4. Dormancy. APS will refund to Customer, agency or employee checks that are issued from an APS bank account that are uncashed after a minimum of 120 days, less a dormancy fee of $30.00 per check. In the event that Customer discontinues processing payroll and requests that APS continues to file the applicable Federal, State, and Local tax returns, Customer will be charged a monthly dormancy fee of $50.00 per month.
   5. IRS Tax Information Acknowledgment. As required by the Internal Revenue Service, the following information must be disclosed to taxpayers that utilize a third party to perform tax filing services on its behalf: Customer acknowledges that it is responsible for the timely filing and payment of all taxes and tax returns listed on Form 8655 and has authorized APS to file the returns and make the payments on behalf of Customer. Pursuant to Revenue Procedure 2012-32, it is recommended that Customer enroll in and use EFTPS to verify the payments are made in an accurate and timely basis. Additionally, there may be state tax verification programs available that can be used in the same manner.
   6. Third Party Sender (TPS) Acknowledgment. Customer confirms and agrees that it has authorized APS to act as Customer’s Paying Agent in processing checks and/or ACH Entries, and that as a Third Party Sender (TPS) will establish one or more clearing accounts with, and submit check, drafts, items, or ACH Entries on behalf of Client to First National Bank of Omaha as an originating depository financial institution (“ODFI”). Customer: (i) assumes the responsibilities of and makes the warranties of an Originator under the Operating Rules of the National Automated Clearing House Association (the “Rules”) and agrees to reimburse ODFI for returns, reversals, adjustments, reclamations, and warranty claims and responsibilities related to Customer’s ACH Entries; (ii) agrees to comply with the Rules, including but not limited to the requirements of Article Two (Rights and Responsibilities of ODFIs, Their Originators and Third Party Senders), Rule 2.15 (Obligations of Third-Party Senders, and of ODFIs and Originators that Use Third Party Senders), and warrants international ACH Entries will not be initiated or originated by Customer, (iii) agrees to comply with all applicable state and federal laws, rules and regulations, including but not limited to sanction laws administered by the Office of Foreign Assets Control (“OFAC”), the Electronic Funds Transfer Act, the Unlawful Internet Gambling Enforcement Act and Federal Reserve Board Regulation E (the foregoing and the ACH Rules are, collectively, the “Applicable Rules”); and (iv) acknowledges that ACH Entries may not be initiated that violate the laws of the United States, including but not limited to the sanctions laws, regulations, and orders administered by OFAC, laws, regulations, rules, and orders administered by the Financial Crimes Enforcement Network (“FinCEN”) (as such terms are defined below), and any state laws, regulations, or orders applicable to the providers of ACH payment services. CLIENT REPRESENTS AND WARRANTS AS TO EACH ACH ENTRY THAT IT HAS OBTAINED THE NECESSARY AUTHORIZATIONS UNDER THE RULES AND APPLICABLE RULES AND THAT IT SHALL NOT INITIATE ANY FUNDS TRANSFER AFTER THE AUTHORIZATION FOR THE SAME HAS BEEN REVOKED (OR THE AGREEMENT BETWEEN CUSTOMER AND TPS HAS BEEN TERMINATED). Customer understands that ODFI and TPS has the right to: (i) review, monitor, and audit Customer’s ACH transactions, processes, and procedures for compliance with this Agreement and the Rules; (ii) restrict or limit the amount or type of ACH Entries processed for Client limited to CCD and PPD transactions; and (iii) suspend, discontinue, or terminate ACH processing based on its assessment of the risk posed to the ODFI or TPS and/or the breach or termination of its agreement with TPS. Customer ratifies and approves of each and every action or instruction which APS may take or give on its behalf or otherwise with respect to such account or items drawn on or deposited into the account, and ODFI shall have no responsibility or liability to Customer with respect to the account or such items. Customer is responsible for the results of using a TPS, the services, and for the accuracy and adequacy of the data Customer or TPS provides. Customer authorizes ODFI to act on any instruction which has been or reasonably appears to have been sent by TPS or Customer, including but not limited to funds transfer instructions. ODFI is not obligated to take any further steps to confirm or authenticate such instructions and will act on them without getting further confirmation. Customer understands that if it or the TPS provides ODFI with incorrect information or if there is any error in the instruction it accepts full responsibility for losses resulting from any of the errors, duplication, ambiguities, or fraud in the information that was provided to ODFI. ODFI is not responsible to third parties (such as, but not limited to, third party service providers and the third parties to whom wire or ACH debit or credits are transmitted hereunder) and CUSTOMER SHALL DEFEND, INDEMNIFY, AND HOLD ODFI HARMLESS FROM, THE ACTIONS OR OMISSIONS OF TPS, OR ANY CLAIM MADE AGAINST ODFI ARISING OUT OF CLIENT’S USE OF THE SERVICES, BREACH OF THIS AGREEMENT, OR BREACH OF ANY WARRANTY UNDER THE RULES.

This acknowledgment shall survive the termination of the agreement between TPS and ODFI. Notwithstanding anything to the contrary elsewhere in the agreement between TPS and Customer, ODFI shall be considered an intended beneficiary of this acknowledgment and is entitled to enforce its terms. This acknowledgment is agreed to in consideration of ODFI’s agreement to serve as ODFI. Customer waives notice of the ODFI’s acceptance of this acknowledgment.

1. Notice with Respect to Non-Consumer ACH Wholesale Credit Transactions and UCC Article 4A. (i) Customer Entries may be transmitted through the Automated Clearing House; (ii) The rights and obligations of the Originator with respect to such payments shall be construed in accordance with and governed by the laws of the State of Nebraska, unless it has been otherwise agreed that the law of some other state shall govern; (iii) Credit given by a Receiving Depository Financial Institution (RDFI) with respect to an Automated Clearing House (ACH) credit entry is provisional until the RDFI receives final settlement for such entry through a Federal Reserve Bank or as otherwise provided for under Article 4A; and (iv) If an RDFI does not receive such final settlement or payment, you are hereby notified and agree that the RDFI is entitled to a refund from the Receiver the amount of the credit to the Receiver’s account, and the party making payment via such entry (i.e. the originator of the entry) shall not be deemed to have paid the amount of such entry.

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 in the applicable SOW (as defined below). This PSA is effective as of date set forth on the applicable order document (including any online forms provisioning or requesting the, or the date set forth on the applicable statement of work (including any online forms) provisioning or requesting the Professional Services (as defined below) issued by APS or its authorized resellers which specify the Professional Services to be provided under this PSA (each, a “SOW”). 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).

1.     Provision of Professional Services. To the extent that Customer has purchased Professional Services pursuant to an applicable SOW, APS will provide such Professional Services subject to the terms and conditions of such SOW and this PSA.  The SOW 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 SOW(s) providing for additional Professional Services to be performed. SOWs shall not be binding on APS until accepted by APS in writing and APS shall have no liability to Customer with respect to SOWs that are not accepted.
2.     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 SOW and will handle all details and logistics of performance.
3.     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 SOW. 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.
4.     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.
5.     Fees.  Customer will pay all fees for Professional Services ordered under each applicable SOW and pursuant to the payment terms set forth therein. Customer will reimburse APS for any expenses for which reimbursement is contemplated in the applicable SOW.  Except as provided above, each Party will be responsible for its own expenses incurred in rendering performance under each SOW. 
6.     Proprietary Rights.  Unless otherwise expressly agreed in any particular SOW, ownership of all work product, developments, inventions, technology or materials provided under a SOW 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 SOW, 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 SOW are reserved.
7.     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 SOW, 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.
8.     Confidentiality.
   1.    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
   2.    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.
   3.    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.
9.     Term.
   1.   Term. This PSA shall commence upon the execution of an SOW and will continue until all Professional Services under each applicable SOW have been completed, in APS’ sole discretion, unless earlier terminated as provided below (the “PSA Term”).
   2.   Mutual Termination for Material Breach. If either Party is in material breach of this PSA or a SOW, the non-breaching Party may terminate this PSA or a SOW 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.
   3.    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 SOW will immediately become due.
   4.    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.
10. 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.
11. 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.
12. Arbitration.

13. 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.

14. Miscellaneous.
    1.    Entire Agreement. This PSA (including all SOWs) 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.
    2.    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.
    3.    Amendment of SOW. Unless otherwise set forth in a SOW, no SOW may be amended except in a writing executed by an authorized representative of each Party.
    4.    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.
    5.    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 SOW, 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.
    6.  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.
    7.    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.
    8.    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.
    9.  No Additional Terms. APS rejects additional or conflicting terms of a Customer’s form purchasing document.
    10.     Order of Precedence. If there is an inconsistency between this PSA and a SOW, the SOW prevails.

These API License Terms (this “API License”) are a part of the APS Subscription Agreement, available at https://apspayroll.com/legal/agreements/#subscription, and are hereby incorporated into the APS Subscription Agreement by reference. All capitalized terms used but not defined in herein shall have the meanings set forth in the APS Subscription Agreement. This API License sets forth the additional terms and conditions under which APS will provide to Customer access to and use of the API Materials (as defined herein). In the event of conflict between this API License and the APS Subscription Agreement, the terms and conditions of this API License shall take precedence. All terms of the APS Subscription, including without limitation all disclaimers, limitations of liability, agreements and indemnities, apply to this API License. 

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

1. CERTAIN DEFINITIONS
   1. “API” means each application programming interface that APS makes accessible to Customer. 
   2. “API Materials” means, collectively, the APIs and Documentation. The API Materials are deemed to be “Services” under the APS Subscription Agreement.  
   3. “Documentation” means any manual, specifications, use guide and related documentation for access to and use of the APIs provided by APS. For the avoidance of doubt, the API Materials shall be included within the definition of Policies in the APS Subscription Agreement.
2. GRANT OF RIGHTS
   1. Grant of Rights. During the term(s) set forth in each applicable Order Form, and subject to Customer’s and its Authorized Users’ compliance with the terms and conditions of this API License (including any limitations on use set forth in the Order Form, APS Subscription Agreement, and Documentation), APS hereby grants Customer a limited, non-exclusive, non-sublicensable and revocable right to access and use the API Materials solely as necessary for developing an integration between the Customer Facilities and the Services (the “Integration”) in order to facilitate the transfer of documents, data (including Customer Data) and other information from the Services to its own Customer Facilities. 
   2. Usage Restrictions. APS sets and enforces limits on your use of the APIs (e.g., limiting the number of API requests that you may make or the number of users you may serve), in our sole discretion as communicated to Customer. Customer agrees to, and will not attempt to circumvent, such limitations documented with each API. If Customer would like to use any API beyond these limits, Customer must obtain APS’ express written consent (and APS may decline such request or condition acceptance on Customer’s agreement to additional terms and/or charges for that use).
   3. Updates. APS reserves the right to modify, update or discontinue its APIs and any versions thereof, with or without notice, and APS shall not be liable for any such modification, update or discontinuance. In the event APS modifies or updates the APIs, APS may require Customer to use the most current version of the APIs at Customer’s sole expense
   4. Third Party Providers. Customer may allow unaffiliated third party service providers (“Third Party Providers”) to access and use the APIs on APS’ behalf, solely as necessary to provide Customer with development, implementation, and related services for the Integration, provided that Customer shall: (i) ensure that such Third-Party Provider complies with the terms and conditions of this API License; and (ii) be liable for any breach of this API License by such Third Party Provider.
   5. Tokens or Electronic Keys. If APS issues any tokens or electronic keys to APS for the access to or use of the APIs, such tokens and electronic keys shall be deemed to be Credentials under the APS Subscription Agreement and subject to the relevant terms set forth therein. 
3. CUSTOMER RESPONSIBILITIES
   1. Customer is solely responsible for obtaining, configuring and maintaining any hardware, network connectivity and third-party software required for the Integration, including computers, mobile devices, operating systems, web browsers and storage devices.
   2. Customer shall at all times implement and maintain appropriate security policies and procedures and access control methodologies (including administrative, technical and physical safeguards) that are consistent with prevailing industry standards, but in no case less than reasonable care, to: (i) safeguard Customer Data within its custody or control against unauthorized processing; and (ii) comply with all data privacy and data security laws and regulations applicable to its processing of Customer Data. Customer shall promptly provide APS written notice if Customer becomes aware of any security incident that adversely impacts the security of the Integration or of joint user personal data in APS’ custody or control (“Security Incident”). Customer shall be solely responsible for remediating the Security Incident. Notwithstanding the foregoing, APS has the right to participate in the investigation and response to any Security Incident suffered by Customer, and Customer will fully cooperate with APS, including carrying out remedial actions at APS’ direction and at Customer’s cost. Customer shall reimburse APS for any costs APS incurs as a result of any such Security Incident. 
4. APS RIGHT TO MONITOR

5. APS reserves the right to monitor Customer’s use of the APIs in order to assess compliance with this API License and the APS Subscription Agreement and to make improvements to the APIs.

6. NO WARRANTIES

7. APS MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE AVAILABILITY, UPTIME OR PERMISSIBILITY OF THE APIS. EXCEPT AS OTHERWISE SET FORTH IN AN ORDER FORM, APS SHALL HAVE NO OBLIGATION TO PROVIDE, SUPPORT OR MAINTAIN THE APIS. 

These Benefits Administration Additional Terms (these “Benefits Terms”) are a part of the APS Subscription Agreement, available at https://apspayroll.com/legal/agreements/#subscription,  and the User Terms, available at https://apspayroll.com/legal/agreements/#user-terms,  and are hereby incorporated into the APS Subscription Agreement and the User Terms by reference. All capitalized terms used but not defined in herein shall have the meanings set forth in the APS Subscription Agreement and User Terms, as applicable. These Benefits Terms set forth the additional terms and conditions under which APS will provide to Customer certain benefits administration services (the “Benefits Services”) and other related services, such as “COBRA Administration Services” (collectively, the “Benefits Administration Services”). In the event of conflict between this these Benefits Terms and the APS Subscription Agreement, the terms and conditions of these Benefits Terms shall take precedence. All terms of the APS Subscription Agreement and the User Terms, including without limitation all disclaimers, limitations of liability, agreements and indemnities, apply to these Benefits Terms. 

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

1. BENEFITS ADMINISTRATION SERVICES

   1. Initial Setup and Additional Configuration Services. Customer agrees that any setup services and additional configuration services provided by APS with respect to the Benefits Administration Services shall be indicated on an applicable Order Form and shall be subject to the Professional Services Terms, provided at https://apspayroll.com/legal/agreements/#prof-services

   2. Benefits Administrator. Customer is responsible for designating an Authorized User (the “Benefits Administrator”) who is authorized to elect and manage group health insurance policies and other employee benefit plans (collectively, the “Benefits Plans”), and which Benefits Administrator shall have access to the relevant administrative and management components of the Services in order to elect and manage such Benefits Plans, including without limitation, (i) selecting, managing and administering the Benefits Plans, (ii) preparing and distributing certain related documentation, and (iii) preparing and processing benefits-related information for payroll purposes. 

   3. Individual Users. Individual Authorized Users (i.e. Customer employees) will have access to certain portions of the Services in order to gain access to certain Benefits Plans documentation and, if applicable to the corresponding Customer account, managing enrollment (including of eligible beneficiaries) during Benefits Plans enrollment periods. 

   4. APS Carrier Connections. If Customer elects the APS Carrier Connections service on an Order Form, APS, or its authorized agent(s), will electronically transmit employee data, including employee benefits enrollment data, to Customer’s carriers or other third parties authorized by and the designated carriers’ systems. APS will not be obligated to transmit Customer’s data to the designated carriers if at any time Customer’s designated carriers fail to provide the proper interface. Customer understands and agrees that APS is not responsible for any incompleteness, inaccuracies or any other issues regarding such data and Customer shall be solely responsible with respect thereto. If Customer requires the development of any special interfaces in order to transmit such data to the designated carriers, all work performed by APS to create such interfaces will be at APS’s then current fees for such services and shall be subject to the Professional Services Terms, provided at https://apspayroll.com/legal/agreements/#prof-services. Customer is responsible for promptly reviewing all records of carrier transmissions and other reports prepared by APS for validity and accuracy according to Customer’s records, and Customer will notify APS of any discrepancies promptly after receipt thereof. In the event of an error or omission in the Carrier Connections services caused by APS, APS will correct such error or omission, provided that Customer promptly advises APS of such error or omission.

   5. COBRA Administration Services. Benefits Administrators may be provided with certain services aimed at assisting Customer in transmitting information related to administering federal group health plan continuation coverage (“COBRA”) pursuant to Section 4980B of the Internal Revenue Code of 1986, as amended from time to time (the “Code”), and Sections 601-609 of the Employee Retirement Income Security Act of 1974, as amended from time to time (“ERISA”). Customer understands and agrees that APS will, as prompted and instructed by Customer via Benefits Administrators or otherwise, securely transmit certain insurance information to the COBRA provider of Customer’s choice. Customer is solely responsible for entering into a written agreement such each provider and for all COBRA administration, payment processing, notice and other requirements relating to any subject individuals. Customer is solely responsible and liable for the accuracy, completeness and legality of any and all insurance information provided to APS. 

   6. No Advice. NEITHER CUSTOMER NOR ANY OF ITS AUTHORIZED USERS ARE ENTITLED TO RELY ON ANY COMMUNICATIONS MADE BY APS REGARDING THE CONTENT, DESCRIPTIONS, OR COMPONENTS OF ANY BENEFITS PLANS OR APPLICABLE LAW AND CUSTOMER AND ALL AUTHORIZED USERS UNDERSTAND AND AGREE THAT THE TERMS OF ANY BENEFITS PLANS DOCUMENTATION CONTAIN SUCH RELEVANT INFORMATION. APS DOES NOT PROVIDE LEGAL, TAX OR ACCOUNTING ADVICE AND BY USING THE BENEFITS ADMINISTRATION SERVICES, CUSTOMER AND EACH AUTHORIZED USER AGREES THAT IT UNDERSTANDS APS IS NOT RENDERING ANY SUCH ADVICE AND THAT IT HAS BEEN ADVISED TO CONSULT WITH ITS OWN LEGAL AND TAX ADVISORS REGARDING THE USE OF THE BENEFITS ADMINISTRATION SERVICES.

   7. Not a Benefits Provider. APS IS NOT A PLAN SPONSOR OR PLAN ADMINISTRATOR OF ANY BENEFITS PLANS AND DOES NOT OFFER, RECOMMEND OR ENDORSE ANY BENEFITS PLANS AS A PART OF THE BENEFITS ADMINISTRATION SERVICES. FURTHERMORE, APS DOES NOT MAKE ANY DECISIONS OR DETERMINE ELIGIBILITY REGARDING ANY BENEFITS PLANS, OR THAT ANY ENROLLMENT INFORMATION WILL BE PROCESSED OR ACCEPTED BY ANY BENEFITS PLANS PROVIDERS. THE DECISION TO ACCEPT ANY BENEFITS PLANS IS MADE ENTIRELY AT YOUR OWN RISK. 

   8. Not a Fiduciary. YOU ACKNOWLEDGE AND AGREE THAT APS IS NOT ACTING IN A FIDUCIARY CAPACITY (INCLUDING, WITHOUT LIMITATION, WITHIN THE MEANING OF ERISA’S DEFINED TERMS “PLAN ADMINISTRATOR” OR “PLAN SPONSOR”), AND SHALL IN NO EVENT BE DEEMED TO BE A FIDUCIARY WITH RESPECT TO YOU OR ANY BENEFITS PLANS. YOU ACKNOWLEDGE THAT YOU REMAIN THE FIDUCIARY OF ANY AND ALL BENEFITS PLANS PROCURED OR MANAGED THROUGH THE BENEFITS ADMINISTRATION SERVICES. YOU ARE RESPONSIBLE FOR REVIEWING FOR ACCURACY ALL COMMUNICATIONS, NOTICES, AND INVOICES YOU RECEIVE DIRECTLY FROM YOUR BENEFITS PLANS PROVIDERS.

   9. Documentation and Funding. NOTWITHSTANDING ANY DOCUMENTATION, TEMPLATES OR INFORMATION WHICH MAY BE ACCESSIBLE ON THE SERVICES OR VIA THE BENEFITS ADMINISTRATION SERVICES, YOU AGREE THAT THE ULTIMATE RESPONSIBILITY FOR THE ACCURACY, COMPLIANCE WITH APPLICABLE LAW, COMPLETENESS AND TIMELY FILING OF ANY AND ALL BENEFITS PLAN DOCUMENTATION IS SOLELY YOUR OWN. YOU AGREE AND ACKNOWLEDGE THAT YOUR LEGAL COUNSEL HAS REVIEWED ANY AND ALL SUCH DOCUMENTS OR THAT YOU HAVE DECLINED TO HAVE LEGAL COUNSEL REVIEW SUCH DOCUMENTS AND THAT YOU SHALL SOLELY BEAR THE RISK WITH RESPECT THERETO. FURTHERMORE, YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR FUNDING ALL BENEFITS PAYABLE UNDER EACH APPLICABLE BENEFITS PLAN AND THAT APS HAS NO FINANCIAL LIABILITY OR RESPONSIBILITY FOR THE PAYMENT OF ANY BENEFITS PLAN BENEFIT OR CLAIM. 

2. CUSTOMER RESPONSIBILITIES

   1. Reliance on Representations. You agree that APS is entitled to rely on any representations, submissions, communications, inputs, eligibility determinations and data provided by Customer, Benefits Administrators and any Authorized Users and that APS’ provision of the Benefits Administration Services require accurate, complete and timely communications and cooperation. Customer further agrees that it is Customer’s responsibility to confirm carrier enrollments on behalf of its employees. APS shall not have any liability for errors, omissions, penalties, fines, judgments or other losses incurred that result from inaccurate, mistaken or incomplete representations, submissions, communications, inputs, eligibility determinations and data provided by Customer, Benefits Administrators and any Authorized Users.

   2. Errors. If you become aware of a failure, possible failure, investigation, audit, or penalty relating to any Benefits Administration Services, you agree to promptly notify APS in writing and agree to cooperate in resolving any such issue. If you request that APS correct any error on your behalf, APS may attempt to do so; provided , however , that APS is not obligated to make any requested corrections, and APS is not liable for any claims or other consequences that may directly or indirectly result from APS’ attempt to correct, or failure to correct, such error. 

   3. Compliance with Laws. As Customer, you agree that you are solely responsible for compliance with all laws, including but not limited to the Code and ERISA, as applicable to each Benefits Plan, and make all required filings with governmental agencies, including the IRS and Department of Labor. You acknowledge and agree that you are solely responsible for determining the legal and tax status of the applicable Benefits Plan, including but not limited to compliance with the Code, COBRA and ERISA, and their respective implementing regulations and guidance, as applicable. You also acknowledge and agree that APS has no liability should any contributions to a Benefits Plan be made in excess of limits established under applicable law (including, for example, rules and regulations set forth by the IRS). 

   4. No Protected Health Information. You agree not to provide APS with protected health information within the meaning of 45 C.F.R. Section 160.103. 

These Printing, Mailing and Net Pay Reconciliation Terms (these “PMNPR Terms”) are a part of the APS Subscription Agreement, available at https://apspayroll.com/legal/agreements/#subscription, and are hereby incorporated into the APS Subscription Agreement by reference. All capitalized terms used but not defined in herein shall have the meanings set forth in the APS Subscription Agreement. These PMNPR Terms set forth the additional terms and conditions under which APS will provide to Customer certain printing and mailing services. In the event of conflict between these PMNPR Terms and the APS Subscription Agreement, the terms and conditions of these PMNPR Terms shall take precedence. All terms of the APS Subscription, including without limitation all disclaimers, limitations of liability, agreements and indemnities, apply to these PMNPR Terms. 

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

1. PRINTING AND MAILING SERVICES
   1. APS Responsibilities.  APS shall print and ship Customer’s United States checks and/or Direct Deposit Advances (DDA’s) on a per payroll batch basis pursuant to the sales order. Printing and delivery are applicable to business days only (excluding APS holidays).  Payroll batches submitted on a non-business day or APS holiday shall be deemed to have been received on the following business day.
   2. Printing.  Each payroll batch submitted by Customer that is received by 3PM in the Central time zone will be printed and shipped the same business day.  For payroll batches that are submitted after 3PM in the Central time zone, APS cannot guarantee that such batches will be printed or shipped the same business day. 
   3. Delivery Method.  APS’ standard delivery method is FedEx Next Day Air and the optional delivery method shall be FedEx 2nd Day Air.
   4. Fees. The following fees are applied on a per usage basis for printing and mailing services, and such services do not have to be indicated on any applicable Order Form, but rather may be confirmed through the Services:  Payment for check printing and delivery service fees shall be included in the monthly ACH service fee draft pursuant to the APS Subscription Agreement and will be detailed on the cash requirements statement.

   Check/DDA – $2.00 per Check/DDA
   
   

   Delivery – $38.53 or the estimated FedEx service rate
   

2. NET PAY RECONCILIATION
   1. Applicability. The terms of this section shall only apply to the extent Customer is receiving Net Pay Reconciliation services pursuant to an Order Form. 
   2. Services. APS will provide to Customer the physical checks issued as a result of the submission and release of each payroll batch or individual employee check requests that are generated by Customer and printed by APS pursuant to the above-described printing and mailing services. Such checks are issued on an APS bank account, are electronically signed and sealed by APS, and are delivered to Customer per its pre-selected delivery method. APS will refund to Customer uncashed checks on a quarterly basis that have not been presented for payment for period of at least one-hundred-and-twenty (120) days from the date of issue. In the event that a previously refunded check is cashed, APS will draft Customer’s account for the amount of the check that was cashed. Refunded checks are considered unclaimed property and it is solely Customer’s responsibility to comply with all federal and state escheatment laws regarding unclaimed property.  
   3. Changes. Customer shall provide APS at least ten (10) business days prior written notice of any requested changes to the Customer’s then-current check layout, including bank routing and account numbers.
   4. Distribution. Customer agrees that it shall not distribute checks to employees prior to the payroll check date. 
   5. Voided Checks. In the event that a check issued by APS on behalf of Customer is requested to be voided by Customer for any reason, Customer will complete and submit to APS the void affidavit form and will incur a stop payment fee of $30.00 per voided check. 
   6. Verification. Customer is solely responsible for verifying that: (i) all payroll checks have been received prior to distributing such checks to employees; and (ii) that the appropriate employees received their checks. 
3. DISCLAIMER. APS is not responsible for any losses due to lost, stolen, destroyed or fraudulently cashed checks. CUSTOMER FURTHER AGREES TO RELEASE, INDEMNIFY, DEFEND AND HOLD APS HARMLESS FROM AND AGAINST ALL COSTS AND EXPENSES (INCLUDING ATTORNEY FEES) IN ANY WAY RELATED TO SUCH LOSSES.

Last Revised: 9/25/24

Your privacy is important to us. This Biometric Privacy Policy (“Biometric Privacy Policy”) describes how Automatic Payroll Systems, Inc. (“APS”, “we”, “us”, or “our”) may collect, use, store, disclose, process, and transfer your Biometric Data, through your access to or use of APS products and services, including those at https://www.apspayroll.com as well as any subdomains, website of ours that links to this Privacy Policy, related websites, mobile applications, and other offerings (collectively, the “Services”). By using the Services, you signify your acceptance of this Biometric Privacy Policy. If you do not agree to this Biometric Privacy Policy, please do not use the Services. APS may change this Biometric Privacy Policy from time to time by posting changes at https://apspayroll.com/legal/agreements/#biometric-policy and may send notification emails regarding such changes. Your continued use of the Services following the posting of such changes will be deemed your acceptance of those changes, unless additional consent is required.

Biometric Data Collected

“Biometric Data”, as used in this Biometric Privacy Policy, means information about a person’s physical or biological characteristics, that can be used to identify such person. In connection with the Services and after you consent to AP’s use of your Biometric Data, APS (or its service providers, such as technology vendors), may collect face geometry, hand geometry and related information in order to accomplish the purposes stated in this Biometric Privacy Policy. 

If you are a Customer who has purchased access to the Services, you hereby agree that you are responsible for complying with all applicable laws, rules and regulations governing any collection, storage, use and/or transmission of Biometric Data and, to the extent required by applicable laws, rules and regulations, you will obtain written authorization from each of your employees and service providers in order to have APS and APS’ authorized service providers to collect, store, use and/or transmit such Biometric Data prior to the collection of such data. 

Timekeeping Devices and Attachments

To the extent you, as a Customer, use timekeeping devices and/or attachments to collect, capture, or otherwise obtain Biometric Data from your employees and/or service providers, you agree that you must first: (1) inform the data subject in writing that Biometric Data is being collected; stored and used; (2) inform the data subject in writing of the specific purpose and length of time for which the Biometric Data is being collected, stored, and used; and (3) receive a written release signed by the data subject (or his or her legally authorized representative) authorizing you, APS, and/or APS’ service providers to collect, store, and use such Biometric Data for the specific purposes disclosed by APS, and authorizing you to provide such Biometric Data to APS and/or its service providers.

Purposes of Collection

APS collects Biometric Data for the purposes of identity verification, workplace security, time entry management and fraud prevention. 

APS, APS’ service providers, and/or its Customers will not sell, lease, trade, or otherwise profit from Biometric Data; provided, however, that APS may be paid for products or services used by APS’ service providers or Customer that utilize such Biometric Data. 

Disclosure of Biometric Data

APS will not disclose any Biometric Data to anyone other than its authorized service providers and Customers unless disclosure is required: 

• – In response to subpoenas, court orders, or other legal process; to establish or exercise our legal rights; to defend against legal claims; or as otherwise required by law. In such cases we reserve the right to raise or waive any legal objection or right available to us.
• – When we believe it is appropriate to investigate, prevent, or take action regarding illegal or suspected illegal activities; to protect and defend the rights, interests, or safety of our company or the Services, our customers, or others; or in connection with our Terms of Service and other agreements with customers of which you may be affiliated.
• – In connection with a corporate transaction, such as a divestiture, merger, consolidation, or asset sale, or in the unlikely event of bankruptcy.

Retention of Biometric Data

APS will retain your Biometric Data consistent with the original purpose of collection or as long as necessary to comply with our legal obligations; maintain accurate operational records; resolve disputes; and enforce our agreements. We will never retain your information for a period longer than permitted by law. 

After expiration of the applicable retention periods, your Biometric Data will be deleted.

Click to download a copy of this Biometric Privacy Policy

(REVISED 9/25/2024)

This Mobile Application End User License Agreement (this “Agreement”) sets forth the legally binding terms between Automatic Payroll Systems, Inc. (“APS,” “us,” or “we”) and you (“End User” or “you”), as an end user of the APS mobile software application offered by APS (including all related documentation, collectively, the “Application”).  The Application may provide you with access to APS’ website located at https://www.eselfserve.com/login_ess.php and/or the current and future technology services and related software and service provided by APS, and other related software, content, and services, including all versions, upgrades, improvements, updates, enhancements, corrections, fixes, release notes and changes thereto (collectively, the “Services”), and certain features, functionality, and content accessible on or through the Application may be hosted on or otherwise made available through the Services (collectively, the “Content”).  The Application is licensed, not sold, to you.  

BY DOWNLOADING, INSTALLING, OR USING THE SERVICES, EFFECTIVE AS OF SUCH DATE (THE “EFFECTIVE DATE”), YOU (i) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (ii) REPRESENT THAT YOU ARE 13 YEARS OF AGE OR OLDER, OR OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; (iii) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS; (iv) REPRESENT, WARRANT AND COVENANT THAT YOU ARE NOT LOCATED IN A COUNTRY THAT IS SUBJECT TO A U.S. GOVERNMENT EMBARGO, OR THAT HAS BEEN DESIGNATED BY THE U.S. GOVERNMENT AS A “TERRORIST SUPPORTING” COUNTRY; AND (v) REPRESENT, WARRANT AND COVENANT THAT YOU ARE NOT LISTED ON ANY U.S. GOVERNMENT LIST OF PROHIBITED OR RESTRICTED PARTIES. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL, OR USE THE APPLICATION AND DELETE IT FROM YOUR MOBILE DEVICE.  IF YOU ARE USING THE APPLICATION ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO ACCEPT THIS AGREEMENT ON THE ENTITY’S BEHALF, AND THAT THE ENTITY AGREES TO BE RESPONSIBLE IF YOU VIOLATE THIS AGREEMENT.

1. Acknowledgement Regarding SMS Messages and Push Notifications. IF YOU HAVE AGREED THAT WE CAN SEND YOU MESSAGES CONTAINING ADVERTISEMENTS OR OFFERS FOR CONTENT AND SERVICES, WE MAY DO SO FROM TIME TO TIME AND MAY SEND SUCH OFFERS BY VOICE OR SMS (OR TEXT) MESSAGE TO THE MOBILE PHONE NUMBER YOU DESIGNATE FOR SUCH PURPOSE. Message and data rates for such SMS messages may apply. Your consent to receipt of such messages is not, and will not be, a condition to any purchase. If at any time you change your mind regarding your consent to such messages, you must contact at (888) 277-8514 or email us at support@apspayroll.com.   
2. License Grant.  Subject to the terms of this Agreement, APS hereby grants you a limited, non-exclusive and nontransferable right to (i) download, install and use the Application for your personal, non-commercial use on a single smart phone, tablet or other mobile device that you own or control (collectively “Mobile Device”); and (ii) access, stream, download, and use on such Mobile Device the Services and Content made available in or otherwise accessible through the Application, strictly in accordance with this Agreement and APS’ User Terms and Privacy Policy, located at https://apspayroll.com/legal/agreements/#user-terms and https://apspayroll.com/about-us/privacy-policy/ respectively, applicable to such Services and Content as set forth in Section 6 below).
3. License Restrictions.  You shall not: (i) copy the Application, except as expressly permitted by this license; (ii) modify, translate, adapt, or otherwise create derivative works or improvements of the Application; (iii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Application or any part thereof; (iv) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notice from the Application;  (v) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Application or any features or functionality of the Application, to any third party for any reason, including making the Application available on a network where it is capable of being accessed by more than one device at any time; or (vi) remove, disable, circumvent, or otherwise create or implement any workaround to any security features in or protecting the Application.  If for some reason these restrictions are prohibited by applicable law or by an agreement we have with one of our licensors, then the activities are permitted only to the extent necessary to comply with such law or license(s). 
4. Reservation of Rights. You acknowledge that the Application is licensed, and not sold, to you. You do not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement.  APS and its licensors and service providers reserve and retain the entire right, title, and interest in and to the Application, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.  
5. Collection and Use of Your Information. You acknowledge that when you download, install, or use the Application, APS may use automatic means (including, for example, cookies and web beacons) to collect information about your Mobile Device and about your use of the Application. You also may be required to provide certain information about yourself as a condition to downloading, installing, or using the Application or certain of its features or functionality, and the Application may provide you with opportunities to share information about yourself with others. All information we collect through or in connection with this Application is subject to our Privacy Policy, located at https://apspayroll.com/about-us/privacy-policy/. By downloading, installing, using, and providing information to or through this Application, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy. 
6. Content and Services.  The Application may provide you with access to the Services and Content. Your access to and use of such Services and Content are governed by APS’ User Terms and Privacy Policy, located at https://apspayroll.com/legal/agreements/#user-terms and https://apspayroll.com/about-us/privacy-policy/ respectively, which are incorporated herein by this reference. Your access to and use of such Services and Content may require you to acknowledge your acceptance of such User Terms of Use and Privacy Policy and/or to register with the Services, and your failure to do so may restrict you from accessing or using certain of the Application’s features and functionality. Any violation of such User Terms of Use will also be deemed a violation of this Agreement.  
7. Limitations on Availability. The Services and Content are based in the United States and provided for access and use only by persons located in the United States. You acknowledge that you may not be able to access all or some of the Services and Content outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Services and Content from outside the United States, you are responsible for compliance with local laws.
8. Acknowledgements Regarding Apple, Inc., Google Inc. and other Marketplace Providers. You acknowledge that this Agreement is between you and APS and not with Apple, Inc., Google Inc. or any sponsor or provider of any application marketplace (each a “Provider”) and that APS (not the applicable Provider) is responsible for the Application and the Services and Content. YOU ACKNOWLEDGE AND AGREE THAT NO PROVIDER MAKES ANY WARRANTIES WHATSOEVER UNDER THIS AGREEMENT OR HAS ANY WARRANTY OBLIGATIONS WITH RESPECT TO THE APPLICATION OR THE SERVICES AND CONTENT. You acknowledge that Providers have no obligation whatsoever to furnish any maintenance and support services with respect to the Application or for addressing any claims relating thereto or your possession and/or use thereof, including, but not limited to (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. You further acknowledge that Providers have no responsibility for the investigation, defense, settlement or discharge of any third party intellectual property claims that the Application or your use thereof infringes intellectual property rights. 
   1. iOS-Based Devices. The following terms apply only to the extent you install the Application on any iOS-based device. If you are using the Application on any iOS-based device, this license is granted to you only as permitted by and subject to any applicable Usage Rules set forth in the Apple, Inc. (“Apple”) App Store Terms and Conditions (the “Usage Rules”). Apple and Apple’s subsidiaries, are third party beneficiaries of this Agreement.  Upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary hereof.
   2. Android-Based Devices.  The following terms apply only to the extent you install the Application on any Android-based device.  If you are using the Application on any Android-based device, this license is granted to you only as permitted by and subject to any applicable Android Market Terms of Service established by Google Inc.
9. Representations About Your Information and Consent Regarding Use of Your Information.  You represent and warrant that all information that you provide in connection with the Application will be current, true, accurate, supportable and complete.  If you submit comments, suggestions, or other feedback regarding the Application (“Feedback”), you agree that we will be free to use such Feedback in perpetuity for any purpose.
10. Updates.  APS may, but is not required to, develop and provide Application updates from time to time, which may include upgrades, bug fixes, patches, other error corrections and/or new features (collectively, including related documentation, “Updates”).  Updates may also modify or delete in their entirety certain features or functionality.  You agree that APS has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality.  Based on your Mobile Device, settings when your Mobile Device is connected to the Internet either: the Application will automatically download and install available Updates, or you will receive notice of or be prompted to download and install available Updates.  You shall promptly download and install all Updates and acknowledge and agree that the Application or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.
11. Third Party Materials.  In an attempt to provide increased value to you, the Application may display, include or link to third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials”). APS has no control over Third-Party Materials, all of which may have separate privacy and data collection practices, independent of APS. These Third-Party Materials are only for your convenience and therefore you access them at your own risk. Without limiting the foregoing, APS specifically disclaims any responsibility if such sites: infringe any third party’s intellectual property rights; are inaccurate, incomplete or misleading; are not merchantable or fit for a particular purpose; do not provide adequate security; contain viruses or other items of a destructive nature; or are libelous or defamatory. APS does not endorse the Third-Party Materials. Nonetheless, APS seeks to protect the integrity of the Services and this Application and the links placed upon it and therefore requests any feedback on not only its own Services, but for sites it links to as well (including if a specific link does not work).
12. Term and Termination. The term of this Agreement and the license and other rights granted herein commence when you download or install the Application and continue until terminated by APS or you.  You may terminate this Agreement by deleting the Application and all copies of it from your Mobile Device. APS may terminate this Agreement at any time without notice if it ceases to support the Application, which it may do in its sole discretion, or if you fail to comply with one or more terms of this Agreement. Upon termination of this Agreement: (i) all license and other rights granted to you under this Agreement will terminate, and (ii) you must cease all use of the Application and delete all copies of the Application from your Mobile Device. You acknowledge that APS may restrict, modify, or terminate this Agreement, without liability, for its convenience, or if you violate this Agreement or any law, rule, or regulation.   Termination will not limit any of APS’ rights or remedies at law or in equity.
13. Disclaimer of Warranties.  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE APPLICATION AND THE SERVICES AND CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTIES OF ANY KIND , AND WE HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT THERETO, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NONINFRINGEMENT OF THIRD-PARTY RIGHTS. WE DO NOT WARRANT AGAINST INTERFERENCE YOU’RE YOUR ENJOYMENT, THAT THE FUNCTIONS CONTAINED IN THE APPLICATION AND THE SERVICES AND CONTENT WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF ANY SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN ANY SERVICES AND CONTENT WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE THAT WE GIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY. 
14. Limitation of Liability. IN NO EVENT SHALL APS OR ITS AFFILIATES BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THE APPLICATION OR THE SERVICES AND CONTENT, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF APS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL APS OR ITS AFFILIATES HAVE AGGREGATE LIABILITY HEREUNDER FOR DAMAGES IN EXCESS OF THE TOTAL AMOUNT ACTUALLY PAID BY YOU OR YOUR EMPLOYER FOR THE APPLICATION. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY OR EXCLUSION OF CERTAIN DAMAGES, SO THIS LIMITATION MAY NOT APPLY.
15. Indemnification. You agree to indemnify, defend, and hold harmless APS, its officers, directors, employees, agents, affiliates, successors, assigns, licensors and suppliers from and against any and all losses, expenses, damages and costs, including reasonable attorneys’ fees, arising from or relating to your use or misuse of the Application or your breach of this Agreement, including but not limited to the content you submit or make available through this Application.
16. Export and Other Restrictions. You may not use or otherwise export or re-export the Application elements thereof except as authorized by United States law and the laws of the jurisdiction in which the Application was accessed or obtained. The United States Export Control laws prohibit the export of certain technical data and software to certain territories. The Application may not be downloaded or exported: into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Sudan, Syria, or any other country to which the United States has embargoed goods; or anyone on the United States Treasury Department’s list of Specially Designated Nationals or the United States Commerce Department’s Table of Deny Orders. APS does not authorize the downloading or exportation of Application to any jurisdiction prohibited by the United States Export Control Laws. The Application and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. The Commercial Computer Software and Commercial Computer Software Documentation are being licensed to any U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. 
17. Miscellaneous. The laws of the State of Louisiana, without regard to its choice of law provisions, govern this license and your use of the Application and the Service. Claims shall be governed by the applicable terms in APS’s User Terms. Your use of the Application or the Services and Content may also be subject to other local, state, national, or international laws.  This Agreement constitutes the entire agreement between us regarding the Application. The section titles in this Agreement are for convenience only and have no legal or contractual effect. “APS” and all associated logos displayed within the Application are our trademarks (unless otherwise noted). This Agreement operates to the fullest extent permissible by law. You may not transfer or assign this Agreement or any of its rights or obligations hereunder without our prior written consent, and any attempt to do so shall be null and void. If any provision of this Agreement is unlawful, void or unenforceable, that provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions. 
18. Contact Us.  Any questions and feedback about this Agreement should be directed to contracts@apspayroll.com.