PAYCOR, INC. TERMS AND CONDITIONS

---

These Paycor Terms and Conditions (“Paycor Terms”) apply to all Orders between Paycor, Inc. (“Paycor”) and Client. All references to “Client” hereunder shall refer to the entity that is receiving Services. These Paycor Terms are effective as between Paycor and Client as of the date of the Order for Services. References in these Paycor Terms to the “Agreement” mean collectively these Paycor Terms, the Order, any related Statements of Work, and any related Supplemental Agreements.

1.         Definitions. For purposes of this Agreement, the terms and phrases listed below shall have the following meanings:

1.1.      “Annual Subscription Fees” as described in Section 21.2.

1.2.      “Client Data” means all data and information supplied by Client, or by a third party on behalf of Client, to Paycor for the performance of the Services.

1.3.      “Confidential Information” means all information disclosed by the Disclosing Party to the Receiving Party, whether orally 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 the disclosure, including, without limitation, each party’s respective business plans and processes, financial and employee data, proprietary technology and product information and designs, the Services  and the terms of the Agreement. Without limitation, Paycor’s prices and discounts are its Confidential Information. Confidential Information excludes information that: (i) is or becomes generally known to the public other than due to an act or omission of the Receiving Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation to the Disclosing Party; (iii) is received from a third-party on a non-confidential basis without a known breach of any obligation to the Disclosing Party; or (iv) was independently developed by the Receiving Party without use of or reference to any Confidential Information.

1.4.      “Disclosing Party” means the Party disclosing Confidential Information.

1.5.      “Documentation” means the then-current documentation published and made generally available by Paycor for the Paycor Services and Paycor Products, as may be provided to Client upon request or made electronically available to Client, in the form of manuals and functional descriptions, as the same may be modified by Paycor from time to time to reflect the latest release of the Paycor Services and Paycor Products.

1.6.      “Fees” means the fees payable by Client to Paycor for Paycor Services and Paycor Products provided by Paycor, which include but are not limited to Annual or Monthly Subscription Fees, and Third-Party Products provided by a Third-Party Provider.

1.7.      “Monthly Subscription Fees” as described in Section 21.2.

1.8.      “Order” means an Order for Services executed by Paycor and Client that describes the Services to be purchased by Client.

1.9.      “Party” means either Paycor or Client, as the context determines.

1.10.    “Paycor Products” means all software programs, including Paycor’s payroll, human resources, and other systems used to perform the Paycor Services, tutorials, and Documentation made available, directly or indirectly, by Paycor to Client in connection with the Paycor Services pursuant to an Order.

1.11.    “Paycor Services” means all payroll processing services, payroll tax filing services, human resource information services, human resource information systems, Perform Time services, and related payroll processing services provided by Paycor or any of Paycor’s affiliates to Client pursuant to an Order or pursuant to Paycor provided free trials or promotions or elected as a services within the Paycor Products. Paycor Services include, but are not limited to, all services described herein.

1.12.    “Payday” means the pay date/check date of the applicable payroll.

1.13.    “Pricing” means the pricing set forth in the Agreement.

1.14.    “Receiving Party” means the party receiving Confidential Information.

1.15.    “Services” means Paycor Services, Paycor Products and Third-Party Products, collectively.

1.16.    “SOW” means a statement of work for Paycor Services.

1.17.    “Third-Party Products” means third-party applications and/or services made available through Paycor for use in connection with the Paycor Services and/or Paycor Products.

1.18.    “Third-Party Terms” means the general terms and conditions pursuant to which Client may use Third-Party Products to the extent Client has purchased a license from Paycor for such Third-Party Products.

2.         Paycor Services.

2.1.      Performance of Paycor Services. Provided that Client is not in material default of any of its obligations under this Agreement, Paycor will, based on the Paycor Services subscribed to and information provided by Client, (i) remit all applicable tax filings and related payments to the appropriate taxing authorities or third parties; (ii) remit applicable payroll amounts in the manner designated by Client; and (iii) provide Client with such Paycor Services as Client (or any other party on Client’s behalf) may purchase or subscribe to from time to time pursuant to an Order or SOW. Paycor’s Third-Party Providers will provide any other applicable services that Client has elected to receive under any Order in accordance with these Paycor Terms and the applicable Order.

2.2.      Credit Approval. Certain Paycor Services are subject to credit approval and are available only for as long as Client meets Paycor’s credit eligibility requirements. Paycor shall not be obligated to provide any Paycor Services or Paycor Products if it is determined by Paycor, in Paycor’s sole discretion, that Client does not meet Paycor’s credit eligibility requirements.

2.3.      Modifications to Services or Products. Paycor reserves the right to modify, enhance, or terminate any of the Paycor Services and Paycor Products from time to time. Paycor shall provide reasonable advance notice to Client in the event of any material modifications to the Paycor Services or Paycor Products being provided to Client.

3.         Tax Filing Services; Designation as Reporting Agent.

3.1.      If Client subscribes to tax filing services, Client hereby appoints Paycor as its reporting agent under Form 8655 of the Internal Revenue Service (“Reporting Agent”) for the limited purposes of permitting Paycor to represent Client and to act on behalf of Client with all persons (including, without limitation, third-party vendors and federal, state and local governmental agencies and taxing authorities including the Internal Revenue Service) for all employment tax matters and in all other matters reasonably related to Paycor’s performance of the Paycor Services.  The completion of Internal Revenue Service Form 8655 by Client shall appoint Paycor as the Reporting Agent with authority to sign and file federal, state, and local employment tax forms and reports either electronically or on paper and to make federal, state, and local tax deposits and other federal, state, or local tax payments on behalf of Client.

3.2.      Where permitted by taxing authorities, Paycor is authorized as a designee of Client to receive returns and copies of notices, correspondence, and transcripts with respect to employment tax returns filed and deposits made by the designee. This authorization shall include the appropriate federal, state and local forms beginning with the tax period indicated on the Form 8655 and will remain in effect through subsequent tax periods until Client or Paycor notifies the Internal Revenue Service of termination or revocation of this authorization. 

3.3.      Consistent with IRS regulations as stated on Form 8655, this authorization does not absolve Client of the responsibility to ensure that all returns are timely filed and the related taxes are paid on time.  If, as a result of an error or omission made by Paycor in performing the tax filing services hereunder, an applicable taxing authority imposes a penalty on or assesses interest against Client, Paycor will pay all penalties and interest to the extent resulting from Paycor’s error or omission. In any such case, Client shall be responsible for all additional taxes and any other interest charges.

3.4.      If Client subscribes to Paycor’s payroll and tax filing services beginning on a date other than Client’s first pay period of a calendar year, Client hereby acknowledges and agrees that: (i) Client is responsible for providing to Paycor complete and accurate information regarding employment tax liabilities, payments, and filings under Client’s federal EIN for the calendar year during which such services begin; (ii) Paycor will prepare tax returns, including applicable quarterly and annual filings, beginning with the period in which Client first subscribes to such services based on information provided by Client to Paycor; (iii) Paycor will remit to taxing authorities only those funds which Paycor has collected from Client regardless of whether those funds represent Client’s entire tax liability for the period(s) for which such funds are remitted; and (iv) Client is and shall be responsible for any penalties, interest, amended return fees, and/or any other fees that may result from inaccurate, incomplete, and/or late tax filings and/or tax payments caused by incomplete, inaccurate, or missing tax liability and/or tax payment information provided by Client.

4.         Funding of Obligations.  Client’s payment obligations for certain Services designated by Paycor must be funded using Client’s demand deposit account(s) (“DDA”). Client agrees to maintain sufficient available funds in its DDA to cover all of Client’s payment obligations.  Paycor may debit Client’s DDA in order to collect Fees and any other fees and expenses invoiced under this Agreement as authorized by Client on a bank authorization form. Client requests for refunds or adjustments will not be processed until Paycor verifies that sufficient funds were received by Paycor from Client to cover all payments made by, or amounts due to, Paycor.

5.         Wire Transfers. If Client is subject to the Federal $100,000 Next-Day Rule as specified in Internal Revenue Service Publication 15 (Circular E, Employer’s Tax Guide), Paycor may require, and Client agrees if so required, that funds representing the total tax liability will be wire transferred from the Client’s DDA to Paycor’s account at least one day prior to Payday for the applicable payroll.  In consideration for the cost of this wire service, Client agrees to pay Paycor a wire transfer fee for each wire transfer. In lieu of Paycor initiating an Automated Clearing House (“ACH”) debit against Client’s DDA, Paycor reserves the right, based on Client’s DDA funding history, Client’s payment history, Paycor’s internal risk policies, and other factors, to require Client to fund any or all future payment obligations via direct wire transfer or reverse wire transfer prior to disbursing any funds to any third party. Client agrees to pay a wire transfer fee for each such transfer.

6.         Insufficient or Non-Confirmed Funds.

6.1.      If sufficient funds are not available in Client’s DDA to cover Client’s payment obligations under this Agreement (an “NSF Event”), Paycor may deem Client to be in breach of this Agreement and Paycor may assess an NSF Event charge. Upon any NSF Event, (i) Paycor will use commercially reasonable efforts to promptly notify Client of the NSF Event, and will provide Client with an opportunity to timely cure the NSF Event, and (ii) Client shall immediately remit all tax deposits and filings, all employee wages, all wage garnishments, and all related penalties and interest due then and thereafter during any suspension or resulting from any suspension or termination. Notwithstanding the above, Paycor and Client also agree that, upon any NSF Event, Paycor may: (y) require that any or all future fundings and payment obligations by Client be made via wire transfer, and Client agrees to pay Paycor’s then current wire transfer fee for each transfer; and/or (z) elect to terminate certain Services subscribed to by Client and may require Client to issue corporate checks to its employees in lieu of termination. The foregoing remedies are in addition to such other remedies as may be provided herein or otherwise available to Paycor by law.

6.2.      In the event that Paycor’s electronic funds transfer (“EFT”) transactions on Client’s DDA are returned due to insufficient funds or for any other reason, Client may request Paycor to reissue the EFT transaction.  If so, Paycor will charge Client a reissuance fee.

6.3.      Client shall be liable for all debits initiated by Paycor hereunder in the performance of the Services.  Client unconditionally promises to pay to Paycor the amount of any unfunded payroll liabilities (including any debit which is returned to Paycor because of insufficient or uncollected funds or for any other reason) upon demand, together with interest thereon at the lesser of one and one-half percent (1.5%) per month or the maximum permitted by law.  Also, if any debit to an employee or other payee’s account reversing or correcting a previously submitted credit(s) is returned for any reason, Client unconditionally promises to pay the amount of such debit upon demand and interest thereon at the rate set forth in this Section.  Client shall cooperate with Paycor and any other parties involved in processing any transactions hereunder to recover funds credited to any employee as a result of an error made by Paycor or another party processing a transaction on behalf of Paycor. Paycor may charge back any amount that Paycor advanced and which Client failed to have available for Paycor. 

7.         Supplemental Agreements. Client will execute any other agreements, addendums or other applicable documents Paycor reasonably deems necessary in order for Paycor to perform and provide Services (collectively referred to as “Supplemental Agreements”), including, without limitation, any and all documentation needed by Paycor to originate EFT transactions on the Client’s DDA referenced in bank authorization(s) executed by Client, and any and all documentation, including powers of attorney, requested by any federal, state, or local governmental agency or taxing authority to evidence the appointment of Paycor as Client’s Reporting Agent.  In addition to any termination rights provided in these Paycor Terms, a Supplemental Agreement may also be separately terminated according to its terms.

8.         Third-Party Products. Third-Party Products are separately licensed by such product’s copyright holder (“Third-Party Provider”). In the event Client purchases licenses for Third- Party Products from a Third-Party Provider through Paycor, such Third- Party Products are subject to these Paycor Terms and the applicable Third-Party Terms between such Third-Party Provider and Client.  Any such Third-Party Products will be set forth in an applicable Order. Client agrees that its signature to the Order constitutes its acceptance of and signature to the Third-Party Terms applicable to Third-Party Products purchased thereunder. Notwithstanding anything to the contrary, no additional rights or remedies are granted by Paycor to Client with respect to Third-Party Products. All references to Paycor Products or Paycor Services in the Paycor Terms shall be deemed to exclude such Third- Party Products. Further, Paycor shall not have any obligation or duty under any provision related to warranty or indemnification included in the Third-Party Terms. All licenses of Third-Party Products are granted subject to Client’s payment of all applicable license fees and compliance with all applicable terms of these Paycor Terms and the Third-Party Terms.  Third-Party Providers include, but are not limited to Attendance on Demand, Inc., Callidus Software Inc., and Newton Software, LLC.

9.         Client Acknowledgments.

9.1.      CLIENT ACKNOWLEDGES THAT: (I) PAYCOR IS NOT RENDERING LEGAL, TAX, BENEFIT, ACCOUNTING OR INVESTMENT ADVICE IN CONNECTION WITH PROVIDING ANY OF THE SERVICES; (II) PAYCOR IS NOT, AND SHALL NOT BE DEEMED TO BE, A FIDUCIARY OF CLIENT FOR ANY PURPOSE; AND (III) PAYCOR SHALL NOT BE DEEMED THE EMPLOYER OR A JOINT EMPLOYER OF CLIENT’S EMPLOYEES FOR ANY PURPOSE.

9.2.      Services are designed to assist Client in complying with its applicable legal and regulatory responsibilities. Nevertheless, Client, and not Paycor, will be responsible for: (i) compliance by Client with all Applicable Laws (as such term is defined herein) and governmental regulations; and (ii) any use Client may make of the Services to assist in complying with such laws and regulations. Paycor may rely upon information provided by Client in Paycor’s implementation or provision of Paycor Services, whether received directly from Client or through a prior or current third-party service provider of Client. Client will use the Services only for the internal business purposes of the Client.

10.       NACHA Compliance.

10.1.    All Paycor Services, Paycor Products, or other services utilizing EFTs shall be provided to Client in accordance with the operating rules of National Automated Clearing House Association (“NACHA”) and Office of Foreign Assets Control (“OFAC”).  Client will not provide funding sourced from a non-U.S. bank account, nor shall Client’s funding cause any employee direct deposit of wages to be subject to NACHA’s International ACH Transactions rules (“IAT”). If Client’s funding method results in any employee direct deposit of wages being subject to IAT, then Client must change the payment method to live check prior to running the payroll. Client accepts and acknowledges that Paycor has no way to identify which fundings or payments would cause it to become subject to IAT. Therefore, Client shall immediately notify Paycor if its payroll becomes subject to IAT.   Client certifies and warrants that it has not been suspended and does not appear on a national list of suspended originators, and that Client will immediately notify Paycor if it becomes suspended or subsequently appears on any such list.  Notwithstanding anything to the contrary set forth herein or in any other writing between Paycor and Client, Client, and not Paycor, shall be considered the originator in connection with any EFTs made by Paycor for or on behalf of Client (“Originator”) (including, without limitation, any direct deposit payments) under all applicable NACHA and OFAC rules. As the Originator, (i) Client authorizes Paycor and Originating Depository Financial Institution (“ODFI”) to originate ACH debits and credits to Client’s accounts, Client’s employees’ accounts, and third party accounts authorized by Client on Client’s behalf; (ii) Client agrees to be bound by the NACHA rules; (iii) Client agrees to not originate ACH debits and credits that violate the laws of the United States; (iv) Client agrees that if Client breaches the NACHA rules, the ODFI and Paycor have the right to immediately terminate or suspend the Client’s ability to originate entries in a manner that permits the ODFI and Paycor to comply with the NACHA rules; (v) Client grants the ODFI and Paycor the right to audit Client’s compliance with the NACHA rules; and (vi) Client, and not Paycor, shall be solely liable to the bank with respect to any representations or other obligations or liabilities whatsoever relating to any such EFTs. Paycor and Client each agree to comply with the NACHA rules applicable to it with respect to Paycor Services and Paycor Products.

10.2.    If utilizing direct deposit services, Client agrees to its responsibilities under the NACHA rules to (i) obtain verbal or written authorization from the employee when setting up direct deposits; (ii) keep any authorization forms and voided checks stored in a secure manner for the required two (2) years from the termination or revocation of the direct deposit authorization; and (iii) provide a copy of any written authorization forms to employees.

11.       Client Data.

11.1.    Provision of Client Data. Client shall timely supply to Paycor all Client Data that is necessary for the performance of the Services including, without limitation: (i) accurate and complete payroll and tax information, which information shall be provided to Paycor at least two banking days prior to each Payday; (ii) copies of all federal, state, and local tax forms, documents and other related employment tax information; and (iii) copies of any notices or correspondence received from any federal, state, or local authority with respect to any tax return or deposit made by Paycor. Based upon a credit risk analysis and other factors and upon notice to Client, Paycor reserves the right, in its sole discretion, to require Client to provide accurate and complete payroll and tax information prior to the timeframe listed in the preceding sentence. Failure to promptly provide all such information may result in one or more of the following: additional fees, late deposits to employee accounts, or late payments or deposits of required taxes. Paycor uses Client Data, including payroll data, and federal, state and local deposit frequencies and identification numbers, to perform the Services and Client accepts responsibility for the verification, accuracy, and timely provision of such Client Data. Paycor is not responsible for any failure to make deposits or filings if the failure is due to Client’s failure to provide accurate, adequate, or timely Client Data or sufficient funds.  Client acknowledges that the accuracy of the Paycor Services is dependent upon Client’s data; therefore, Client agrees that Paycor is not responsible for any errors in data, including but not limited to, federal, state or local regulatory violations or other employment policies or practices which may violate the law.

11.2.    Verification by Client. Services are dependent upon Client Data provided to Paycor by Client. Client agrees that Client, and not Paycor, is responsible for the accuracy of all Client Data provided to Paycor in connection with the Services. Client will promptly review, for each pay period, the accuracy of all Client Data supplied to Paycor and the accuracy of all paychecks, disbursements, payroll registers, and reports produced for Client by Paycor or Paycor’s Third-Party Providers. Client agrees to promptly notify Paycor of any errors, omissions, or discrepancies in the Client Data, and Client releases Paycor from any liability incurred due to the use of or errors resulting from inaccurate or incomplete Client Data or the failure of Client to review the accuracy of Client Data. In the event of any discrepancies in Client Data, Client must promptly inform Paycor of the correct information.  Client will be responsible for the consequences of any instructions Client provides to Paycor.  Client represents and warrants that it has all requisite right, title and interest to provide Client Data to Paycor.

11.3.    Client Data. Except as otherwise expressly stated herein, (i) Client retains all right, title and interest in and to Client Data  and Client Data shall remain Client’s sole and exclusive property, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights associated with the Client Data.  Client represents and warrants to Paycor that it has: (i) all right, title and interest in and to all Client Data; and (ii) obtained the consent of its employees and/or contractors to use Client Data in connection with the Services.  The Parties agree that Client grants Paycor the right to use Client Data solely for purposes of performing the Services and nothing in this Agreement shall be construed to grant Paycor any ownership right in or license to Client Data.  Furthermore, Paycor may collect and use certain Statistical Data, as such term is defined below, to enable, optimize, support and improve performance of the Services, to develop and market new products and services, or for industry benchmarking purposes.  “Statistical Data” means non-personal statistical, demographic, or usage data or metadata generated in connection with any use of the Services.  Statistical Data does not include any personally identifiable information or any personal data.

11.4.    Record Keeping. Client acknowledges and agrees that it is the Client’s and its employees’ responsibility to store and update records relating to Client Data and any other information provided by Client to Paycor or Paycor’s Third-Party Providers.  Further, Client acknowledges and agrees that Paycor is not, and shall not be, Client’s or Client’s employees’ record keeper, and that Paycor archives various reports it generates (based on information provided by Client in any form) only as a convenience to Client.  Client shall, to the extent it deems necessary, keep copies of all source documents, records and other information delivered to Paycor.

12.       Data Integration Services.

12.1.    If Client subscribes to Paycor’s data integration services, whereby data is transmitted between Paycor and one or more third parties identified by Client (“Data Integration Services”), which third parties may include, without limitation, retirement plan administrators, point of sale systems operators, and benefit plan administrators (each a “Transmission Partner”), then Paycor’s provision of Data Integration Services is contingent upon: (i) the agreement of Paycor, Client, and the Transmission Partner as to the means (e.g., Application Programming Interface (“API”) or Secure File Transfer Protocol (“SFTP”)), frequency, and format of the transmission, including whether such transmission is solely with Paycor as transmitter or recipient, or as both; and (ii) to the extent that any fees are payable to Paycor in association with the creation or maintenance of the transmission interface, or transmissions using such interface, that such fees are documented in an Order, SOW, or such other documentation as required by Paycor. 

12.2.    To the extent that Paycor and Client have agreed to use an existing Paycor interface for Data Integration Services, Client acknowledges and agrees that Paycor has no obligation to customize such standard interface, and that any customization required by Client and agreed to by Paycor will incur additional charges. 

12.3.    Client expressly consents to data transmissions by Paycor to and from Transmission Partners as part of the Data Integration Services and agrees that Paycor has no responsibility with respect to the use or handling of data transmitted by Paycor to Transmission Partners following transmission, and that Paycor’s use and handling of any data received by Paycor will be governed solely by this Agreement. 

12.4.    Subject to the conditions herein, Paycor agrees to transmit to and receive from, as applicable, data from designated Transmission Partners, and to use commercially reasonable efforts to transmit information timely and accurately. It is Client’s responsibility to verify that the data is received by a Transmission Partner.

12.5.    Client understands and agrees that all funds payable by Client and associated with such transmission (e.g., retirement plan funds) shall be remitted directly by Client to the Transmission Partner and shall not be Paycor’s responsibility. Paycor is not responsible for transmission failures or errors in the data beyond ensuring that the data and associated files meet the specifications agreed to by Paycor. Paycor may terminate its Data Integration Services with any Transmission Partner at any time at Paycor’s discretion.

13.       W2 Export Service. Client acknowledges and agrees that Client will be automatically enrolled in Paycor’s W2 Export Service, which allows Client’s employees to request, through participating online tax preparation provider (“OTPPs”), that earnings information (i.e., information from Form W2 and similar income tax forms) prepared by Paycor for the requesting employee be electronically transferred to an OTPP for the purpose of facilitating the completion of the employee’s individual income tax filings.  Paycor, in its discretion, shall determine participating OTPPs and the earnings information provided through this service.  Paycor is not responsible for the actions of any OTPP, or an OTPP’s use of earnings information, which shall instead be governed by the relevant OTPP’s privacy policy and terms of use which may exist between the relevant participating employee and OTPP. For the purposes of this Section, participating employees are those Client employees for whom Paycor has prepared an income tax-related document (e.g., a Form W-2), and who have requested through a participating OTPP that tax information be automatically imported from Paycor. Paycor may terminate Paycor’s W2 Export Service with any OTPP at any time at Paycor’s discretion.

14.       Workers’ Compensation Services.  If Client subscribes to Workers’ Compensation Services, Paycor will calculate workers’ compensation premiums (“Premiums”) for Client’s employees for the applicable state based on the National Council on Compensation Insurance (“NCCI”) manual classification(s) as provided by Client and file and pay the Premiums timely on Client’s behalf to the Ohio Bureau of Workers’ Compensation (“OBWC”) or applicable insurance carrier (“Insurance Carrier”).  Client will supply to Paycor accurate and complete data, including NCCI manual classifications and Premium rates issued by the OBWC or Insurance Carrier, necessary for the timely performance of the Workers’ Compensation Service.  Client will check and verify, for each pay period, the accuracy of employee NCCI classifications and all Premiums and timely and fully review reports. Client agrees to immediately notify Paycor of any errors or changes in rates.  If Paycor notices any potential inaccuracy in data supplied by Client, Paycor will attempt to advise Client of the same; however, Paycor is not liable for any failure to notify and/or failure to advise Client of inaccuracies.  Client will maintain sufficient funds in its bank account to cover any direct-debit of Premiums and applicable Fees.  Client understands that Paycor’s provision of these Workers’ Compensation Services does not absolve Client as the Employer covered by OBWC or Insurance Carrier of the responsibility to ensure that all Premiums are filed and paid accurately and on time. 

The Workers’ Compensation Services include the option for the Client to calculate premiums per applicable state payroll guidelines.  Client is responsible for understanding the state guidelines, including without limitation those governing proper classification of employees under assigned NCCI manual classifications.  Paycor assumes no responsibility or liability for Client’s improper NCCI classification of employees or Client’s incorrect calculation of Premiums.

OHIO CLIENTS: Paycor requires Client to sign and deliver form AC-2, which allows Paycor to act as risk-management representative, on behalf of Client.

15.       Paycor Analytics.  “Paycor Analytics” is a people analytics and workforce planning solution that provides Client’s human resources leaders with answers to pre-built questions across human resource and business topics.  If Client subscribes to Paycor Analytics services, Client represents and warrants that, during the term of this Agreement, (i) it has all necessary right and licenses to Client Data for use by Paycor in providing Paycor Analytics, and (ii) such necessary consents, permissions, and assurances from its employees to provide Client Data to Paycor and its third-party analytics provider, and permits the collection, transfer to and processing of Client Data by Paycor for the purposes contemplated under this Agreement.

16.       ACA IRS Filing Services. If Client subscribes to Paycor’s Affordable Care Act (“ACA”) Internal Revenue Service (“IRS”) filing services (collectively “ACA Services”), Paycor will: (i) provide Client access to a portal for data entry and validation (“ACA Portal”); (ii) aggregate Client data available in the Paycor Products with Client Data entered directly by Client into the ACA Portal (collectively, the “Aggregated Data”), provided that such data is in the format specified by Paycor; (iii) inform Client of required data Paycor believes to be missing from the Aggregated Data; (iv) provide Client the ability to verify Aggregated Data used for the filing and/or distribution of IRS forms 1094-C, Transmittal of Employer-Provided Health Insurance Offer and Coverage Information Return, and 1095-C, Employer-Provided Health Insurance Offer and Coverage; (v) prepare, file, and distribute a single IRS form 1094-C per federal Employer Identification Number to the IRS on behalf of Client; (vi) provide a copy of IRS form 1094-C to Client; (vii) provide forms 1095-C to Client for distribution to Client’s employees; and (viii) assist Client in the resolution of IRS notices related to the ACA Services provided by Paycor.

16.1.    Client Acknowledgments. Client acknowledges that: (i) the ACA Services provided by Paycor rely upon data provided by Client to Paycor and that such Client specific data may not reside in Paycor Products; (ii) the ACA Services provided by Paycor are not intended to fulfill all Client responsibilities and requirements under the Patient Protection and Affordable Care Act (“PPACA”); (iii) Paycor’s ACA Services do not include preparation of forms 1094-B and 1095-B; and (iv) Client must subscribe to ACA Services through December 31 in order for Paycor to prepare forms 1094-C and 1095-C.

16.2.    Client Responsibilities. Client agrees that Client, and not Paycor, is responsible for: (i) timely verifying the reports and forms compiled or created by Paycor in the performance of the ACA Services; (ii) Client’s compliance with any and all provisions of the Employer Share Responsibility provisions of the PPACA; and (iii) any penalties, interest, and/or fines resulting from Client’s non-compliance with the Employer Share Responsibility provisions of the PPACA except for those penalties, interest and/or fines that are the direct result of Paycor’s errors or omissions in providing ACA Services.

17.       Time Clocks; Time Services. Client may purchase or rent time clocks (“Clocks”) from Paycor in order to facilitate Client’s tracking of employee time. In conjunction with the purchase or rental of Clocks, Paycor or a Third-Party Provider shall provide Client with such time services as Client may request from time to time pursuant to an Order (“Time Services”).

17.1.    Rented Clocks. This Section 17.1 applies only if Client has agreed to rent Clocks from Paycor pursuant to any Order (“Rented Clocks”).

(a)        Payment; Billing. Rental payments for Rented Clocks shall be due monthly on the date and in the amount set forth on the applicable Order.

(b)       Rental Term. “Rental Term” shall mean the period that Client is receiving Time Services.

(c)        Termination; Security Charge. If Time Services are terminated by Client or Paycor, Client shall be charged and debited for the price of a new clock (the “Security Charge”) for all Rented Clocks in Client’s possession as of the date such Time Services are terminated (the “Termination Date”). However, for each Rented Clock that Client returns to Paycor (i) within thirty (30) days of the Termination Date and (ii) in good condition, reasonable wear and tear excepted, Paycor will refund the Security Charge.

(d)       Lost or Damaged Clocks. If any Rented Clock is lost or damaged due to Client’s negligent, reckless, or intentional act, Client shall be responsible for the cost of the repair, up to the then-current replacement value of the lost or damaged Clock.

(e)        Client shall keep the Rented Clocks at all times free and clear of all claims, levies, liens, encumbrances and process, and shall not pledge, lend, create a security interest in, or attempt in any manner to dispose of, the Rented Clocks or any part thereof.  Client shall give Paycor prompt notice of any attachment or other judicial process affecting any part of a Rented Clock. 

(f)        Unless otherwise set forth in the applicable Order, all subscriptions for Time Services shall begin (and shall be invoiced from) the first day of the month in which the Rented Clock is shipped to Client (unless that Rented Clock has been returned) regardless of when in the month those Rented Clock(s) are ordered and shipped to Client.

17.2     Purchased Clocks. This Section 17.2 applies only if Client has agreed to purchase Clocks from Paycor pursuant to any Order (“Purchased Clocks”).

(a)        Payment; Billing. The purchase price for the Purchased Clocks is the amount set forth on the Order, which amount is due and payable prior to Client’s taking possession of the Purchased Clocks.

(b)       Clock Returns. Client may return certain Purchased Clocks to Paycor within thirty (30) days of Client’s receipt of such Clocks, and if the Purchased Clock is unopened and still in original packaging (including the back plate and power cord) Paycor will refund the full purchase price of such Purchased Clock to Client. If such returned Purchased Clock is returned open and not in its original packaging or is missing components but is in like-new condition, as determined by Paycor in Paycor’s sole discretion, Paycor will refund the full purchase price of such Clock to Client less the restocking fee. Paycor shall pay any refund due to Client within sixty (60) days of Paycor’s receipt of such returned Purchased Clock. In all cases, shipping and transportation costs and charges for any returned Purchased Clocks shall be paid by Client.

(c)        Remedy. Client’s remedy for breach of the Clock Warranty (as such term is defined below) is expressly limited to repair or replacement of the defective Clock with a Clock of similar functionality in good working condition. Any Purchased Clock which, under normal use and service, is proven to breach the warranty described in this Section will, upon examination by Paycor, and at Paycor’s option, be repaired or replaced with a similar Clock by Paycor. Paycor reserves the right to replace any Clock with a used or refurbished Clock.

(d)       Subject to the manufacturer’s ownership of any intellectual property rights it may have in a Purchased Clocks, title to the Purchased Clocks shall pass to the Client when Paycor has received full payment for the Purchased Clocks.

17.3     Use by Client. Client hereby agrees to (a) not use the Clocks except as part of Paycor’s applications; (b) not modify, reverse engineer, reverse compile, or disassemble the object code for the Clocks; (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Clocks, and notify Paycor immediately of any such unauthorized access or use, (d) sell, resell, rent or lease the Clocks to any other third parties, (e) not use the Clocks to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (f) not interfere with or disrupt the integrity or performance of the Clocks or third-party data contained therein, (g) not attempt to gain unauthorized access to the Clock software, hardware or its related systems or networks, (h) not remove any proprietary notices, labels, or marks from the Clocks; (i) frame or mirror any content forming part of the software or services; or (j) access the Clocks in order to build a competitive product or service, or copy any ideas, features, functions or graphics of the Clocks.

17.4     Acceptance of Delivery. Client shall give Paycor written notice of damage to or issues with any Clock within five (5) days after delivery thereof.

17.5     Installation of Clocks. Client shall install, maintain and use the Clocks at Client’s location(s), and shall arrange for network and Internet connectivity at the locations.  Upon Paycor’s request, the Client will provide a list of all Clock location(s) and Clocks installed at each such location.

17.6     Maintenance. Paycor, at its cost, will be responsible for maintaining the Clocks during the period of time that Client subscribes to Time Services (in the case of Rental Clocks, during the Rental Term). Maintenance of Clocks includes (i) repairing any defective Clock, and (ii) if Paycor determines that a Clock cannot be reasonably repaired, replacing such Clock with a comparable Clock. In the case of maintenance related to a Purchased Clock, Client may be charged a fee for examination of such Clock. Any Rented Clock and Purchased Clock that is eligible for replacement services shall collective and individually be considered a “Covered Device”. In the event that any of the Covered Devices no longer functions properly, Paycor shall replace the non-functioning Covered Device.  If Client provides Paycor with notice of use of these replacement services, Paycor will ship (via overnight courier) a replacement of the equivalent Covered Device with the same fitted accessories for the non-functioning Covered Device to the Client at a delivery location specified by the Client. Thereafter, Client (if asked to do so by Paycor) shall return such Covered Device to Paycor’s place of business within ten (10) days of request of Paycor.  Any replacement clock shall be shipped with a pre-paid return shipping label. Replacement devices may be new or refurbished units, as determined by Paycor. If not so returned, Paycor may assess a charge for the replacement Covered Device equal to the purchase price.  Paycor reserves the right to charge Client the full cost of any repairs and/or the replacement devices if: (i) the non-functioning Covered Device is not returned within ten (10) days of Paycor’s written request to return the Covered Device; (ii) Paycor reasonably concludes that a defect or damage to the Covered Device occurred because Client failed to follow Paycor’s instructions as to the storage, installation, commissioning, use or maintenance of the Covered Device or good trade practice, (iii) Paycor reasonably concludes that Client altered or repaired or attempted to alter or repair the Covered Device without the written consent of Paycor; or (iv) Paycor reasonably concludes that a defect or damage occurred as a result of Client’s willful damage, negligence, improper installation, misuse or abnormal working conditions.

17.7     Warranties.

(a)        Paycor Warranties.  Paycor warrants that the Clocks will be of good material workmanship and will be free of defects if properly installed and operated (the “Clock Warranty”). In the case of Rented Clocks, such Clocks are covered under the Clock Warranty during the Rental Term. In the case of Purchased Clocks, Paycor agrees to pass through to the Client any warranties it receives from the manufacturer with respect to any Purchased Clocks (the “Purchased Clock Warranty”). Paycor further warrants that the Clocks shall perform materially in accordance with the documentation.

(b)       Client Warranties. Client represents, covenants and warrants (i) that it has the right to disclose and provide to Paycor any data collected by Client and its users through the use of the Clocks, (ii) that Client’s use, distribution, marketing, dissemination, and/or provision of the Clocks will comply with all applicable federal, state and local laws, rules and regulations, (iii) that the Client will not use, nor knowingly permit its users, or other third parties, to access, use, make available, provide, distribute, or disseminate all or any portion of the Clock software or hardware in any manner which would violate the terms of these Terms or any applicable federal, state or local laws, rules, or regulations, (iv) that the Client’s use and distribution of the Clocks will comply with the terms of any third party product agreements included with the Clocks and (v) that the Client  has or shall obtain and maintain all necessary licenses, permissions and consents which may be required for the Clocks hardware and/or software before installing the Clocks.

(c)        Disclaimer of Warranties. THE CLOCK WARRANTY AND PURCHASED CLOCK WARRANTY ARE EXPRESSLY IN LIEU OF ALL WARRANTIES, EXPRESSED OR IMPLIED, AND ALL OTHER WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTY OF MERCHANTABILITY, THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY OF NON-INFRINGEMENT, NON-INTERRUPTION OF USE, AND FREEDOM OF ERRORS. IN NO EVENT SHALL PAYCOR BE LIABLE TO CLIENT FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR OTHER DAMAGES OF ANY SORT. IN NO EVENT WILL PAYCOR’S CUMULATIVE LIABILITY EXCEED THE REPLACEMENT VALUE OF THE CLOCKS (IN THE CASE OF RENTED CLOCKS) OR THE PURCHASE PRICE OF THE CLOCK AS SET FORTH ON THE APPLICABLE ORDER (IN THE CASE OF PURCHASED CLOCKS). The Clock Warranty and Purchased Clock Warranty shall not be deemed as breached for any Clocks that have been (i) damaged, tampered with, abused, improperly installed, or damaged in shipping, or (ii) repaired or altered by any person other than an authorized Paycor representative.

17.8     Liability for Damage. Client shall bear the entire risk of loss and shall be responsible for any loss of or damage to any Clock not covered under the Clock Warranty or Purchased Clock Warranty (“Non-covered Device”).  In the event of loss or damage of any kind to all or any portion of the Non-covered Device(s), Client shall notify Paycor and, at Paycor’s option, Paycor shall: (a) place the same in good repair, condition and working order; (b) replace the same with like equipment in good repair, condition and working order, and furnish Paycor with the necessary documents to vest in Paycor the same title which Paycor now possesses in the Non-covered Device(s); or (c) if the Partner determines that the Non-covered Device(s) is or are beyond repair, pay to Paycor the value of so much of the Non-covered Device(s), or any part thereof, as may be damaged or destroyed, which value shall conclusively be presumed to be the amount of the remaining rental fee payments due for the balance of the term applicable to such Non-covered Devices.

17.9     Indemnification. Client shall indemnify and hold Paycor harmless from and against any loss, liability, cost, damage, expense, or claim arising from Client’s use of the Clock(s).

17.10   Effect of Termination. Upon expiration or termination of the Agreement, the Client shall cease using the Rented Clock and associated Time Services (provided in connection with a Rented Clock or Purchased Clock) and within thirty (30) days of Paycor’s request, Client will return all Rented Clocks to such address within the United States that Paycor may direct.  Client agrees to pay reasonable replacement charges as invoiced by Paycor for any Rented Clocks not returned to Paycor within such timeframe.

18.       Payroll-Related Third-Party Payment Services.  If Client subscribes to electronic child support, electronic wage garnishment” or other similar services as designated by Paycor for electronic third party payments (“Basic Garnishment Services”), Client may electronically request that payroll-related payments be made to third parties by EFT or check as designated by Client (although EFT payments will only be permitted to the extent Paycor has approved Client for EFT-related services and the agencies support this payment method).  Client shall be responsible for providing payee and amount information electronically from Client and Paycor shall have no responsibility for calculating payment amounts.

If Client subscribes to Paycor’s garnishment processing service(s), including wage garnishment processing for child support– garnishment, or other similar services as otherwise designated by Paycor, (collectively, “Pro Garnishment Services”), Client may request that payroll-related payments be calculated by and/or made to third parties by Paycor, to the extent permitted. Client must provide Paycor with all documentation (e.g. a wage garnishment or child support order) required by Paycor to perform Pro Garnishment Services, after receipt of which Paycor will use commercially reasonable efforts to calculate required payments in accordance with Applicable Laws and to enter into its systems such calculated amounts and payee information.  The form of payment for Pro Garnishment Services (check or EFT) will be at the discretion of Paycor and Paycor will endeavor to include with such payments, any notices that are required by statute to accompany payments. Paycor will not prepare or transmit other notices that are not included with payments, which may be required for payees, courts, regulatory authorities, or employees.

Checks issued in support of third-party payment services will be issued as Paycor official checks or corporate checks.  Client is legally responsible for reviewing and ensuring the accuracy of any wage garnishment, child support, or other third-party payments scheduled by Paycor regardless of payment method, and Client is legally responsible for ensuring that such payments and associated notices comply with Applicable Laws.  Client further authorizes Paycor to collect funds and initiate payments to the extent required for any services described herein and subscribed to by Client.         

19.       Benefits Administration Services. Client shall be responsible for complying with the rules and requirements of all health care plans, flexible spending accounts, health savings accounts, and other benefit plans offered by Client to its employees.  If Client subscribes to Paycor’s benefits administration services (“Benefits Administration Services”), Client: (i) consents to data transmissions by Paycor to and from bswift, LLC (ii) will review any and all reports received from Client’s health insurance carriers and fund managers including, without limitation, error reports; (iii) will fully cooperate with Paycor and Client’s health insurance carriers and fund managers to resolve all error reports; and (iv) will use the Paycor Product to document, update, and correct health information of Client’s employees as the sole source of data transmitted by Paycor in connection with the Benefits Administration Services.  It is Client’s responsibility to verify the accuracy and completeness of all health information maintained in the Paycor Product and supplied to Paycor in connection with the Benefits Administration Services. 

20.       Consulting Services. Paycor offers consulting services to assist clients in configuring the Paycor Services. Paycor shall provide Client with such services as Client may request from time to time pursuant to an Order or SOW, which shall be subject to and incorporate these Paycor Terms (“Consulting Services”).

20.1.    Place of Performance. Unless otherwise expressly agreed to by Paycor, Paycor shall perform any purchased Consulting Services at Paycor facilities. In conjunction with the Consulting Services, Client shall provide Paycor with remote access to necessary Client systems and appropriate access levels.

20.2.    Period of Performance. Paycor shall not be liable if any purchased Consulting Services exceed the projected timeline set forth on the related SOW.

20.3.    Termination of Consulting Services. In addition to any termination rights provided herein, Consulting Services may also be separately terminated according to the SOW.

21.       Fees for Services.

21.1.    In consideration of the rights granted and Services provided hereunder, Client shall pay Paycor the Fees set forth in the Order or as purchased within the Paycor Product. 

21.2.    Subscription Fees.  This Section shall apply if Client purchases either an Annual or Monthly Subscription as set forth on the Order:

(a)        Annual Subscription.  If Client purchases an annual subscription, Client agrees to an initial payment for one full year of Service(s).  After one year and annually thereafter, Client will be billed a recurring annual subscription renewal fee at the then-current annual subscription rate (“Annual Subscription Fees”).  Client accepts responsibility for all recurring charges until Client cancels the annual subscription in accordance with the terms of Section 24 in this Agreement. 

(b)       Monthly Subscriptions.  If Client purchases a monthly subscription, Client agrees to an initial and recurring monthly subscription fee at the monthly subscription rate set forth in the Agreement, or if no such rates are set forth, at Paycor’s standard rates for such Services (“Monthly Subscription Fees”).  Client accepts responsibility for all recurring charges until Client cancels the monthly subscription in accordance with the terms of Section 24 in this Agreement.

(c)        Modification to Subscription Fees.  Clients who desire to upgrade their subscription package to the next package level or enhance their subscription package to the next subscription tier level may do so in writing at any time.  Any amount remaining under Client’s partially used subscription period will be credited to the Client’s account and applied to the subsequent payment due.

(d)       Billing for Paycor recruiting will begin on the first day of the month that the Paycor Service is activated.  Billing for Annual and Monthly Subscription Fees will begin on the date of Client’s first payroll processing.  Notwithstanding the foregoing, all Subscription Fees paid are non-refundable.  Unless otherwise set forth in the Agreement, Paycor has the right to change the Subscription Fees from time to time upon thirty (30) days’ prior written notice to Client.  Paycor may charge additional fees, at the unit rate listed in the Agreement, in the event of any change in processing method by Client (for example, increasing employee count over the tier level referenced in the Agreement.) 

21.3.    If Client  purchases Paycor Services which are subject to bundled pricing, Paycor will begin billing Client for Fees for the month during which Client first processes payroll.  If Client purchases Paycor Services which are not subject to bundled pricing, Paycor will begin billing Client for Fees either for the month during which the Paycor Service is activated or when Client first processes payroll, whichever occurs later.  Paycor shall have the right to assess a late payment charge on any overdue amounts equal to the lesser of: (i) two percent (2%) per month; or (ii) the highest rate allowed by Applicable Law.  Unless otherwise set forth in the Agreement, Paycor has the right to change the Fees and any other charges, fees and any expenses contemplated herein from time to time upon thirty (30) days’ prior written notice to Client.  Paycor may charge additional fees for Services not enumerated in an Order if such additional Services are requested by Client. Paycor may charge reasonable miscellaneous fees including but not limited to stop payment fees, overage fees (in the case of an annual or monthly subscription early check cashing fees, wire transfer fees, and inactive account fees, as applicable, and all such fees may be adjusted at any time without notice. For a full listing of such miscellaneous fees, see https://www.paycor.com/miscellaneousfees. Fees are subject to change in the event of any change in processing method or processing frequency by Client (for example, changing from bi-weekly to semi-monthly payroll processing).  All Fees paid pursuant to this Agreement or any applicable Order are non-refundable.  In the event Paycor seeks legal recourse for the collection of any unpaid Fees from Client, Paycor will be entitled to collect reasonable attorney’s fees and other costs incurred by Paycor in such matter. AS ADDITIONAL CONSIDERATION, PAYCOR MAY INVEST CLIENT’S FUNDS AS PAYCOR DEEMS APPROPRIATE; ANY AND ALL PROFITS, ACCUMULATIONS, AND ANY OTHER FORMS OF GAIN RESULTING FROM SUCH INVESTMENTS SHALL ACCRUE FOR THE BENEFIT OF AND SHALL BE THE SOLE PROPERTY OF PAYCOR, AND CLIENT HEREBY ASSIGNS TO PAYCOR ALL BENEFITS DERIVED ON CLIENT FUNDS HELD BY PAYCOR. ANY AND ALL LOSSES INCURRED DUE TO PAYCOR’S INVESTMENT OF CLIENT’S FUNDS WILL BE BORNE SOLELY BY PAYCOR AND WILL NOT BE SUBJECT TO THE LIMITATION OF LIABILITY.

21.4.    Fees are exclusive of all taxes, including without limitation, sales, use, value-added or other taxes or levies on transactions made under this Agreement. Client shall pay Paycor an amount equal to any tax Paycor is required to collect or pay upon the sale, license, or delivery of deliverables to Client by Paycor exclusive of taxes imposed upon Paycor’s net income.

21.5.    Unless otherwise stated herein or agreed to in writing, Paycor shall debit Client’s DDA for the Fees and all other fees. Implementation fees as described in the Agreement or any Orders are non-refundable. Client has fifteen (15) days from the date of a debit or the date of an invoice, whichever is later, to dispute any charges or withdrawals and if not disputed in such time frame then Client waives any claims related to such charges or withdrawals.

21.6.    In the event that Client is overdue on payment of Fees, Paycor may offer Client a one-time option to pay Fees via credit card.  If Client elects to make the payment of any Fees via credit card payment, Client agrees to be responsible for any associated convenience fee up to four percent (4%) of the invoiced amount and any related late fees and interest charges.  Client acknowledges and understands that payroll and tax liability may not be paid via credit card. 

21.7.    If applicable, deposits paid by Client upon execution of this Agreement shall be applied to Client’s invoice for the first payroll processed by Paycor on behalf of Client. Client shall forfeit deposits in the event Client terminates this Agreement prior to such initial processing of payroll.

22.       Warranties; Remedies; Exclusions.

22.1.    Paycor represents and warrants that: (i) it shall provide the Paycor Services using personnel having a level of skill in the area commensurate with the requirements of the Paycor Services to be performed; (ii) the functionality of the Paycor Products will not be materially decreased during the term of this Agreement, subject to Paycor’s right to modify, enhance or terminate any of the Paycor Products from time to time upon notice; (iii) it shall utilize software and other security means designed to prevent the Paycor Products from containing or transmitting malicious code; (iv) the Paycor Products will perform in accordance with the Documentation; and (v) to its knowledge, it owns or otherwise has sufficient rights in the Paycor Products and the Documentation granted herein. Paycor’s warranty is conditioned on Client’s (a) use of Paycor Services and Paycor Products in accordance with Paycor’s instructions, (b) not making any unauthorized repairs or alterations to Paycor Products or Paycor Services, and (c) not being in default of any payment obligation to Paycor.  Paycor does not warrant that: (i) the Paycor Services or Paycor Products will meet Client’s specific requirements, regardless of whether Paycor or any Paycor representative knew or should have known of such requirements; (ii) the Paycor Services and Paycor Product will be uninterrupted or error-free; (iii) the results that may be obtained from use of the Paycor Services or Paycor Product will be accurate or reliable; (iv) the quality of any products, services, information, or other materials purchased or obtained by Client through the Paycor Services or Paycor Product will meet Client’s expectations; or (v) any errors in the Paycor Services or Paycor Product will be corrected.

22.2.    EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN HEREIN, PAYCOR MAKES NO ADDITIONAL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED IN FACT OR BY OPERATION OF LAW, OR STATUTORY, AS TO ANY MATTER WHATSOEVER.  PAYCOR EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.  PAYCOR MAY NOT MAKE OR PASS ANY OF ITS REPRESENTATIONS OR WARRANTIES SET FORTH HEREIN TO ANY THIRD-PARTY.  TO THE MAXIMUM EXTENT PERMITED BY LAW, ALL SERVICES AND PRODUCTS PROVIDED PURSUANT TO THIS AGREEMENT ARE PROVIDED “AS-IS.”.

22.3.    THE WARRANTIES SET FORTH IN THIS SECTION ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED BY PAYCOR TO CLIENT AND ARE SUBJECT TO LIMITATIONS OF LIABILITY SET FORTH BELOW. 

22.4.    CLIENT REPRESENTS AND WARRANTS THAT IT WILL COMPLY WITH ALL APPLICABLE FEDERAL, STATE AND LOCAL LAWS, RULES AND REGULATIONS (“APPLICABLE LAWS”), WHICH INCLUDES BUT IS NOT LIMITED TO ALL APPLICABLE LAWS ADDRESSING THE COLLECTION, STORAGE, NOTIFICATION AND RECEIPT OF CONSENTS RELATED TO PRIVACY, DATA SECURITY, AND BIOMETRIC INFORMATION AFFECTING BOTH CLIENT’S INFORMATION AND ANY INFORMATION COLLECTED BY CLIENT AND PROVIDED TO PAYCOR AND ITS THIRD-PARTY PROVIDERS REGARDING CLIENT’S EMPLOYEES, AGENTS AND INDEPENDENT CONTRACTORS.

23.       Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT FOR (i) INTEREST CHARGES AND PENALTIES IMPOSED BY TAXING AUTHORITIES TO THE EXTENT PROVEN TO BE THE DIRECT RESULT OF PAYCOR’S NEGLIGENCE; (ii) ACTUAL DAMAGES INCURRED BY CLIENT AS A DIRECT RESULT OF THE CRIMINAL, FRAUDULENT ACTS OR WILLFUL MISCONDUCT OF PAYCOR; AND (iii) THIRD-PARTY CLAIMS AS DESCRIBED IN SECTION 27.4 BELOW, THE CUMULATIVE LIABILITY OF PAYCOR TO CLIENT FOR ALL CLAIMS RELATING TO OR ARISING FROM PAYCOR SERVICES, PAYCOR PRODUCTS, CLOCKS OR THE AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS THE TOTAL FEES PAID BY CLIENT TO PAYCOR FOR THE AFFECTED SERVICES FOR ONLY THE PAY PERIOD(S) FROM WHICH SUCH LIABILITY ARISES (THOUGH IN NO EVENT MORE THAN ONE (1) MONTH’S AVERAGE FEES FOR THE AFFECTED SERVICES EVEN IF LIABILITY ARISES FROM MULTIPLE PAY PERIODS, SUCH AVERAGE BEING MEASURED OVER THE TWELVE MONTH PERIOD PRECEDING THE LIABILITY).  IN THE CASE OF AN ANNUAL OR MONTHLY SUBSCRIPTION, THE “TOTAL FEES PAID BY CLIENT TO PAYCOR FOR THE AFFECTED SERVICE” SHALL BE THE ANNUAL SUBSCRIPTION FEE OR MONTHLY SUBSCRIPTION FEE, AS APPLICABLE, PAID BY CLIENT.  IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD-PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL OR OTHER DAMAGES OF ANY SORT (INCLUDING LOST PROFITS, LOST REVENUE, LOST INCOME, OR ANY REVENUE ARISING FROM LOSS OF ANTICIPATED BUSINESS) NOT SPECIFICALLY PROVIDED FOR HEREIN AS A RESULT OF THE PERFORMANCE OR NON-PERFORMANCE OF ANY OBLIGATION UNDER THIS AGREEMENT, EVEN IF A PARTY HAS ADVISED THE OTHER PARTY OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE, AND EVEN IF SUCH DAMAGES WERE OR SHOULD HAVE BEEN FORESEEABLE. FURTHER, UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD-PARTY WITH RESPECT TO ACTIONS, FACTS OR CIRCUMSTANCES OCCURRING OR EXISTING PRIOR TO THE DATE OF THIS AGREEMENT.  THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF DAMAGES APPLIES REGARDLESS OF ANY OTHER REMEDIES A PARTY MAY HAVE.  CLIENT ACKNOWLEDGES THAT THIS SECTION IS AN INTEGRAL PART OF THE AGREEMENT THAT HAS BEEN BARGAINED FOR BY THE PARTIES, AND THAT THIS SECTION WILL REMAIN IN EFFECT EVEN IF ANY OTHER PROVISION OF THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.

24.       Term and Termination.

24.1.    Term. This Agreement shall commence on the date of written acceptance by Paycor and shall continue until terminated in accordance with the provisions of the Agreement. 

24.2.    Termination for Convenience. Unless otherwise provided in this Agreement either Party may terminate this Agreement at any time by providing thirty (30) days’ advance written notice to the other Party. Unless otherwise provided on the relevant Order, if Client terminates an individual Service, Client shall pay any Fees related to such terminated Service through the termination date. Monthly Fees will not be prorated in the event of such termination. Client acknowledges that Pricing is determined based on anticipated cumulative volume, and that, in the event Client terminates an individual Service or Client fails to initiate a purchased Service, Paycor reserves the right to re-price continuing Services up to Paycor’s then-current standard pricing.  Until execution of this Agreement by Client and Paycor, and after termination of this Agreement for any reason, Paycor has no obligation to perform any Services for, or on behalf of, Client.

24.3.    Termination and Suspension for Cause. Paycor may, in its sole discretion, immediately terminate this Agreement without prior notice should Client not remedy any suspension of Services as provided in this Agreement, within a reasonable time as determined by Paycor and to Paycor’s satisfaction, or if Paycor suspends the Services more than once within a twelve (12) month period. If Paycor suspects any unlawful activity by Client or any of Client’s employees or if Client fails to pay any Fees, fails to maintain sufficient funds in its DDA, becomes the subject of a proceeding under the Bankruptcy Code, seeks appointment of a trustee, receiver or custodian, seeks liquidation, dissolution reorganization or the like, fails to maintain a credit rating reasonably acceptable to Paycor, or fails to perform any other obligation under this Agreement, Paycor may, at its discretion, in addition to other available remedies: (i) indefinitely suspend any combination of payrolls in process, future payrolls, or any and all Services under this Agreement, whether provided by Paycor or a third party until such time as the underlying cause is remedied to Paycor’s satisfaction; (ii) terminate this Agreement, upon written notice to Client; or (iii) take any and all other actions it deems appropriate to secure payment of all amounts owed to Paycor by Client under this Agreement including termination of this Agreement immediately and without prior notice.  In addition to and not in limitation of any of Paycor’s remedies, Client grants Paycor the right to offset for any amounts owed by Client to Paycor in any Paycor account.  Client agrees to pay for all collection costs, including reasonable attorneys’ fees, which Paycor may incur as a result of Client’s failure to perform any obligation under this Agreement.

24.4.    Effects of Termination.  If either Party terminates this Agreement for any reason, Paycor shall not be responsible for making any further payroll tax deposits or filings, and Paycor may retain deposits to offset any amounts owed from Client. Notwithstanding the foregoing, if this Agreement is terminated for any reason other than Client’s breach or default: (i) Paycor will, at Client’s request, prepare and file any outstanding employment tax forms and reports, prepare employee W2s and perform other reasonable and customary actions related to the terminated Services provided that Client has paid for such Services; (ii) Client will remit any and all tax and third party payments beginning with the date of termination; and (iii) Paycor will return to Client any uncommitted Client funds held in any Paycor account net of all payment obligations and Fees for Services performed through the date of termination.

24.5.    Data Access Upon Termination. If this Agreement is terminated for any reason other than Client’s breach or default hereunder, Client shall, for up to thirty (30) days after the date of termination, be provided with access to online reports and custom reporting as previously subscribed to by Client, for the sole purpose of obtaining an electronic copy of its Client Data. Paycor is not responsible for Client’s failure to obtain an electronic copy of its data within such thirty (30) day period, and Client releases Paycor from any and all claims related thereto.  Client acknowledges and agrees that Paycor shall have no obligation to provide Client with access to its Client Data: (i) in the event Client is in breach or default hereunder, or (ii) beyond the thirty (30) day period referenced herein.

25.       Intellectual Property. Paycor Products and Paycor Services are the exclusive property of Paycor or the third parties from whom Paycor has secured the rights to license. Client is being granted a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Paycor Products solely for purposes of inputting and providing certain data in order for Paycor to provide the Paycor Services, and subject to these Paycor Terms. No rights are granted to Client hereunder other than as expressly set forth herein.  All rights, title and interest in or to any copyright, trademark, service mark, trade secret, and any other proprietary right relating to the Paycor Products and the Paycor Services and their related logos, product names, etc., as well as any modifications that are derivative works of the foregoing, are reserved by Paycor. Client agrees that it shall not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) which may be affixed to or contained within the Paycor Products or Paycor Services. Client shall not (i) use Paycor trademarks in any manner without Paycor’s advance written consent; (ii) change, modify, adapt, disassemble, decompile, reverse engineer or enhance any portion of the Paycor Products or Paycor Services being provided to Client hereunder, (iii) modify, copy, or create any derivative works based on the Paycor Products or Paycor Services; (iv) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Paycor Products or Paycor Services available to any third-party, other than as otherwise permitted herein; (v) access the Paycor Products or Paycor Services in order to build any commercially available product or service; or (vi) copy any features, functions, integrations, interfaces, or graphics of the Paycor Products or Paycor Services, and any attempt to do so (whether by Client or a third party directed by Client) shall be deemed a breach of this Agreement by Client.

26.       Confidentiality and Security.

26.1.    Non-public Personally Identifiable Information.  Paycor agrees to treat all non-public personally identifiable information (“Information”) that Client discloses to Paycor (including but not limited to employee pay rates, employee names, addresses, social security numbers, telephone numbers, e-mail addresses, credit information, account numbers, or account balances) in accordance with applicable privacy laws, rules, and regulations. Except as provided herein, Paycor will use Information solely for the purpose of performing the Services.

Client agrees that Paycor may disclose Information to: (i) Paycor’s employees or agents (including its attorneys, auditors, or accountants) in the ordinary course of Paycor’s business; (ii) non-affiliated third parties who need access in order for Paycor to carry out the Services or any other services requested by Client, including but not limited to Third-Party Providers; (iii)  employees, agents, affiliates, or contractors of Client that supplied such Information to Paycor or that Client has authorized to receive such Information from Paycor; or (iv) as is otherwise required by Applicable Law (including but not limited to responding to subpoenas and investigations by government regulatory authorities). Paycor shall take appropriate measures to maintain the security and confidentiality of Information, treating such Information in a manner similar to which Paycor treats its own Information.

26.2.    Confidentiality. The Receiving Party shall use the same degree of care to protect the Disclosing Party’s Confidential Information against unauthorized use, access, or disclosure that it uses to protect its own Confidential Information (but in no event less than reasonable care). Further, the Receiving Party shall not use Confidential Information except to the extent necessary to exercise its rights and perform its obligations under the Agreement. The Receiving Party shall not disclose any of the Disclosing Party’s Confidential Information to anyone other than: (i) those employees, representatives, and agents of the Receiving Party who have a need to know such Confidential Information in order for Paycor to perform the Services and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information; or (ii) as is otherwise required by Applicable Law (including but not limited to complying with subpoenas, investigations by government regulatory authorities, and disclosing such information to Paycor’s attorneys, auditors, and accountants). To the extent necessary under this Agreement, each Party may disclose the Confidential Information of the other Party to employees or subcontractors who are bound by written obligations of confidentiality and non-disclosure at least as protective as those set forth herein. In the event of a court order or government regulation compelling disclosure of any Confidential Information, the Receiving Party shall provide the Disclosing Party with prompt written notice thereof, and shall reasonably cooperate with the other Party to seek confidential or other protective treatment. Confidential Information is and at all times will remain the property of the Disclosing Party. The foregoing obligations as to confidentiality shall remain in full force and effect notwithstanding any termination of the Agreement for whatever reason.

26.3.    Securities Laws. Client hereby acknowledges that the Confidential Information may include material non-public information. Client acknowledges that it is aware that the United States securities laws prohibit any individual who has received from the issuer of securities material non-public information concerning the matters that are the subject of this Agreement from purchasing or selling any securities of such issuer or from communicating such information to any other individual when it is reasonably foreseeable that such other individual is likely to purchase or sell such securities in reliance upon such information.

26.4.    Data Security. Paycor shall maintain commercially reasonable administrative, physical, and technical measures that are designed to protect the security, confidentiality, and integrity of Client Data, and that are reasonably appropriate to the risks represented by the processing and nature of the provided Client Data to be protected, and designed to guard against the accidental or unauthorized access, use, loss, or disclosure of Client Data while it is in the Paycor Products. Client acknowledges that Client has an independent duty to comply with any and all Applicable Laws in connection with its provision of Client Data to Paycor.  Client may not perform any security penetration tests or security assessment activities without the express advance written consent of Paycor.

26.5.    Online Access. Certain Paycor Products or Paycor Services may be accessed by Client and its authorized employees through the internet at a website provided by Paycor or on behalf of Paycor, including those hosted by Paycor on behalf of Client. In addition, and notwithstanding anything to the contrary contained herein, Client acknowledges that security of transmissions over the internet cannot be guaranteed. Paycor is not responsible for (i) Client’s access to the internet, (ii) interception or interruptions of communications through the internet, or (iii) changes or losses of data through the internet, in each case other than to the extent caused solely by Paycor.

26.6.    Password Protection. Client agrees to maintain the privacy of usernames and passwords associated with Paycor Services and Paycor Products provided through the internet. Client is fully responsible for all activities that occur under Client’s password or internet account. Client agrees to (i) immediately notify Paycor of any unauthorized use of Client’s password or internet account or any other breach of security; and (ii) ensure that Client exits from Client’s internet account at the end of each session. Paycor shall not be liable for any damages incurred by Client or any third party arising from Client’s failure to comply with this Section.

26.7.    Client Data Protection. In order to protect Client Data, if Paycor suspects any breach of security, Paycor may immediately suspend any or all of Client’s and Client’s employees’ use of Paycor Services and Paycor Products provided through the internet without prior notice.

26.8.    Paycor’s Pricing. Client acknowledges and agrees that the Pricing is proprietary to Paycor, that Paycor takes reasonable measures to maintain the confidentiality of the Pricing, and that Paycor derives value from the Pricing not being generally known to the public. Accordingly, Client acknowledges and agrees that, during the term, it will not disclose the Pricing to any third party (other than to Client’s employees and advisors who have a need to know the Pricing in connection with Client’s legitimate business purposes), and that Client will use commercially reasonable efforts, consistent with how Client treats its own confidential and proprietary information, to maintain the confidentiality of the Pricing.

26.9.    Paycor Branding. Client shall not use the nomenclature, copyrighted information, branded materials, or information otherwise derived of Paycor or its affiliates for purposes of internal security training.

26.10.  Data Processing Agreement. Client may request a Data Processing Addendum, as may be required by the General Data Protection Regulation (“GDPR”), by sending such request to [email protected]. Client understands and acknowledges that the Paycor HR AnswerLink service does not meet GDPR compliance requirements.

27.       Indemnification.

27.1.    Fraudulent/Criminal Acts.  Each Party shall indemnify the other Party against any loss, liability, cost, damage or expense (each a “Loss”) arising from, or in connection with, any fraudulent or criminal acts of said Party or said  Party’s employees, representatives or agents.

27.2.    Client’s General Indemnification.  Except to the extent a Loss arises solely and exclusively from Paycor’s negligence, Client shall indemnify and hold Paycor harmless from and against any Loss arising from or otherwise relating to: (i) Client’s breach of any representation or warranty set forth in this Agreement; (ii) Client’s failure to perform any covenant or other obligation set forth in this Agreement; (iii) the timeliness or accuracy of information supplied by Client to Paycor; (iv) actions taken by Paycor pursuant to instructions provided by the Client; or (v) Client’s use, misuse, or resale of the Services.

27.3.    Paycor’s General Indemnification. Subject to the limitation of liability contained in Section 23, Paycor shall indemnify and hold Client harmless from and against any Loss arising from or otherwise relating to: (i) Paycor’s breach of any representation or warranty set forth in this Agreement; or (ii) Paycor’s failure to perform any covenant or other obligation set forth in this Agreement.

27.4.    Third-Party Claims of Infringement.  Paycor shall indemnify and hold harmless Client from and against any Loss directly arising from a claim that Client’s use of any of the Paycor Products infringes the intellectual property rights of a third party; provided, however, that: (i) Client has not modified or otherwise altered any of the intellectual property comprising or contained in the Paycor Products; (ii) Client shall give prompt written notice to Paycor of the third-party claim (except that the failure to provide prompt notice will only limit the indemnification obligations to the extent Paycor is prejudiced by the delay or failure); (iii) Paycor has full and complete control over the defense and settlement of the third-party claim; and (iv) Client shall assist Paycor in connection with the defense and settlement of the third-party claim as reasonably requested by Paycor. If Client is enjoined or otherwise prohibited from using any of the Paycor Products or a portion thereof based on a claim that such Paycor Products infringe the intellectual property rights of a third party, then Paycor may, at its sole expense and at its option, either: (x) obtain for Client the right to use the allegedly infringing portions of the Paycor Products; (y) modify the allegedly infringing portions of the Paycor Products so as to render them non-infringing without substantially diminishing or impairing their functionality; or (z) replace the allegedly infringing portions of the Paycor Products with non-infringing items of substantially similar functionality.  If Paycor determines that the foregoing options are not commercially possible or reasonable, Paycor may terminate the Agreement upon thirty (30) days advance written notice to Client. Without limiting Paycor’s obligation to indemnify Client as set forth above, the remedy set out in this Section 27.4. is Client’s sole and exclusive remedy for any actual or alleged infringement by Paycor of any third-party intellectual property rights in the event that Client is enjoined or otherwise prohibited from using any Paycor Products.

28.       General Provisions.

28.1.    Independent Contractor. This Agreement establishes an independent contractor relationship only, by which Paycor will perform the Services for Client.  It is not intended as, and may not be construed to establish, a partnership, joint venture, agency or master/servant relationship between Paycor and Client.

28.2.    Telephone Conversations. Client acknowledges and agrees that any telephone conversations between representatives of Paycor and Client may be recorded by Paycor for training purposes.

28.3.    Agent.  Paycor is not an agent of Client except where required for federal, state and local payroll tax deposits, filings and correspondence and except for purposes of any unclaimed property act.  For the purpose of any unclaimed property act, Paycor shall be deemed to hold property as Client’s agent for Client alone and Client shall be deemed to be the holder of property insofar as the interest of any other person and the property is concerned.  Should an agency relationship be found to exist, it will automatically terminate (except for the purpose of any unclaimed property act) upon return to Paycor of any check or pre-authorized charge of Client for insufficient or uncollected funds.

28.4.    Severability.  If any provision of this Agreement or any portion thereof is held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remainder of this Agreement will not in any way be affected or impaired.

28.5.    Assignment.  This Agreement may not be assigned by Client without prior written consent of Paycor, and any assignment made without such consent is null and void.

28.6.    Governing Law and Inducement.  This Agreement shall be construed in accordance with and governed by the law of the State of Ohio (without regard to principles of conflict of laws), including the application of any applicable statutes of limitations.  Any action, suit or proceeding brought by any party with respect to, or to enforce the terms of, this Agreement, shall be brought by such party exclusively in the courts of the State of Ohio located in Hamilton County, Ohio, or in the courts of the United States for the Southern District of Ohio, Western Division. Each party hereby agrees that the courts are proper personal jurisdictions and venues and are convenient for the parties and the resolution of disputes between them. Each party forever waives and forfeits, and agrees not to pursue, any defense for lack of personal jurisdiction, lack of venue, or forum non conveniens to an action filed in the courts. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH ANY AGREEMENT.  EACH PARTY HERETO (I) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (II) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED HEREIN.

28.7.    Waiver.  A waiver by either Party of its rights hereunder is not binding unless contained in a writing signed by an authorized representative of the Party waiving its rights.  The non-enforcement or waiver of any provision on one occasion does not constitute a waiver of such provision on any other occasions unless expressly so agreed in writing.

28.8.    Conflict of Terms.  In the event of a conflict between the terms of an Order and these Paycor Terms, these Paycor Terms shall prevail, unless the Order contains provisions that explicitly supersede these Paycor Terms.   In the event of a conflict between any Supplemental Agreement and these Paycor Terms, the Supplemental Agreement shall prevail and govern.  In the event of a conflict between any SOW and these Paycor Terms, the SOW shall prevail and govern with respect to the Consulting Services set forth in such SOW. 

28.9.    Amendment. This Agreement may not be modified except by a writing signed by the authorized representatives of both Paycor and Client. Handwritten changes and modifications, even if initialed, are invalid and shall be of no force or effect.

28.10.  Force Majeure. Any Party hereto will be excused from performance under this Agreement for any period of time that the Party is prevented from performing its obligations hereunder as a result of an act of God, war, utility or communication failures, or other cause beyond such Party’s reasonable control. Both Parties will use reasonable efforts to mitigate the effect of a force majeure event.

28.11.  Entire Agreement.  This Agreement constitutes the entire understanding of the parties, and supersedes all prior agreements between the parties, whether oral or written. 

28.12.  Non-Hire.  During the term of this Agreement, Client shall not solicit the employment of any Paycor employee who has been involved in furnishing Paycor Services hereunder.  Nothing contained in this Section, however, shall prohibit Client from hiring any Paycor employee who responds to a general advertisement for employment, provided Client did not initiate contact with the employee or otherwise alert the employee to the advertisement.

28.13.  No Publicity. Client may not use Paycor’s name(s) or trademark(s) in any marketing, publication, advertising, training, phishing, or similar activity without Paycor’s prior written consent, which may be withheld in Paycor’s discretion.

Effective starting: 1 May 2021