Terms and Conditions

3.              Service Effective Date.

The “Service Effective Date” is set forth on the applicable Sales Order and is the date that Provider commences the applicable Services set forth on such Sales Order.

4.     Fees And Payment.

User agrees to pay Provider or Provider’s affiliate all fees for the Services as are set forth on the applicable Sales Order and/or Service Terms and all applicable excise, sales, use, or other taxes, fees (including, but not limited to, monthly minimum fees), or charges applicable to the Services (the “Fees”); provided, that, Provider shall begin billing User for such Fees on the Service Effective Date, other than Fees related to implementation and/or license fees, if applicable, which will be billed at the beginning of the implementation process. User agrees to reimburse Provider for any sales, use, and similar taxes arising from the provision of the Services that any federal, state, or local governments may impose. Shipping and handling/local courier/express delivery fees may be subject to adjustment at the discretion of Provider based on increases in third party costs.

User shall pay its fees for all Services, including the Early Termination Fee (if applicable), through an ACH electronic funds transfer transaction (“ACH” or “EFT”). THE ACH AUTHORIZATION AGREEMENT A FORM OF WHICH WILL BE PROVIDED BY PROVIDER TO USER MUST BE EXECUTED BY USER AND RETURNED TO PROVIDER WITHIN FIVE (5) BUSINESS DAYS FOLLOWING THE EXECUTION OF THE SALES ORDER. User agrees that the funds representing the total amount due for all applicable Provider fees, including the Early Termination Fee (if applicable), must be on deposit in User’s designated bank account, as specified by User (the “Bank Account”), in collectible form and in sufficient amount on the day the Provider EFT charge is initiated.

Following the expiration of the Initial Term (as defined below), Provider reserves the right to reasonably increase the Fees once per calendar year.

If Provider is unable to collect fees due because of insufficient funds in User’s Bank Account or for any other reason, User must pay the amount due immediately upon demand, plus any applicable exceptions, processing fees, bank fees, or charges for return items, plus interest at the maximum rate permitted by law, plus attorneys’ fees and other costs of collection as permitted by law. Provider may offset all amounts owed to it from User from funds held by it for payment of User’s taxes or for payment to any third party.

In the event the applicable Sales Order provided for an Early Termination Fee (as defined below) greater than $0, User hereby grants irrevocably to Provider a first priority purchase money security interest in the Collateral (as defined below) to secure the payment of the fees set forth in the applicable Sales Order, along with any other amounts that User owes to Provider for the Services provided pursuant to this Agreement. For this purpose, the “Collateral” is the Early Termination Fee (if applicable), all proceeds and collections with respect to the Early Termination Fee and all records. User agrees that Provider may file a UCC-1 financing statement to perfect, amend or continue its security interest and User agrees to cooperate in any such filing and hereby appoints Provider as its attorney-in-fact for the purpose of perfecting its security interest in the Collateral.

 

5.              Privacy Policy.

Please refer to Provider’s Privacy Policy (https://www.asuresoftware.com/legal/privacy-policy) (the “Privacy Policy”) for information on how Provider collects, uses, and discloses information from Users. User acknowledges and understands that Provider may collect, use, and disclose User’s information pursuant to the Privacy Policy, as it may be updated from time to time. User acknowledges and agrees that any Service provided pursuant to this Agreement shall be subject to the terms and conditions set forth in the Privacy Policy, which shall be incorporated into and form a part of this Agreement.

 

6.              User Compliance; Non-Solicit.

Use of the Platform and the Services are each conditioned upon User’s full compliance with this Agreement and all applicable laws, rules, and regulations.

User shall not assign, loan, sublicense, alter, modify, adapt (or cause to be altered, modified, or adapted) or otherwise transfer any product or service offered by Provider. User shall not, and shall cause its employees, contractors, and/or agents (as applicable) not to: (i) modify, copy or create any derivative works based on any product or service offered by Provider; (ii), sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, or otherwise make any product or service of Provider available to any third party, other than to User Customers (as defined in the applicable Service Terms) as permitted herein who are not competitors of Provider; (iii) reverse engineer, decompile or disassemble any portion of any product or service offered by Provider, including but not limited to, any software utilized by Provider or otherwise attempt to obtain or perceive the source code from which any software component of any such product or service is compiled or interpreted and User agrees that nothing in this Agreement shall be construed to grant User any right to obtain or use such source code and; (iv) access any product or service offered by Provider in order to build any commercially available product or service; (v) copy any features, functions, integrations, interfaces or graphics or software components of any product or services offered by Provider; (vi) use any product or service offered by Provider or permit it to be used for purposes of performing or publishing the results of a product evaluation, benchmarking or other comparative analysis without Provider’s prior written consent; or (vii) use the products or services offered by Provider in any manner, or in connection with any content, data, hardware, software or other materials provided by or on behalf of User or any Authorized User that contains code, including without limitation, open source code and freeware, that would directly or indirectly: (A) create, or purport to create obligations with respect to the use or distribution of any software that incorporates, is combined with, or derived from any such product or service; (B) grant, purport to grant, or require User to grant to any third party any rights or immunities in any software that incorporates, is combined with, or is derived from any such product or service; and/or (C) require as a condition of its use, modification, and/or distribution, that any software incorporated into, derived from, or distributed with any of Provider’s products or services must be disclosed or distributed in any form.

During the Term of this Agreement and for a period of twelve (12) months following the expiration of the Term, User shall not, directly or indirectly through another person (including an affiliate), solicit, entice away, interfere with Provider’s relationship with or hire any employee that is employed, or was employed in the preceding 12-month period, by Provider.

 

7.              User Online Account and Access.

If User and/or User’s employees access or connect to the Platform and/or Services online or through any mobile or other electronic devices (an “Online Account”), User is solely responsible for (i) designating who is authorized to have access to the Online Account (“Authorized User(s)”); (ii) safeguarding all passwords, usernames, logins, or other security features used to access the Online Account (“Online Account Access”); (iii) following any Provider procedure for appointing or changing Authorized Users; and (iv) any unauthorized access, or use of the Services caused by Authorized User(s)’ actions or inactions, regardless of User’s knowledge of such actions, including without limitation, its failure to safeguard Online Account or Online Account Access. User agrees to immediately notify Provider of any actual or suspected unauthorized use of the Online Account and acknowledges that User is solely responsible for damages resulting from any unauthorized use or User’s failure to timely notify Provider of any actual or suspected unauthorized use. Provider reserves the right to limit, suspend, or terminate User’s and/or Authorized User(s)’ access to the Online Account should Provider have reason to believe that the security or confidentiality of the Online Account or Online Account Access has been compromised. User must implement an information security program appropriate to safeguard the Online Account or Online Account Access and acknowledges that Provider is not liable to User, User’s Employees, or any other third party for any consequences, losses, or damages resulting from unauthorized access or use of the Online Account.

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

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

User, whether directly or through its Authorized User(s), is also obligated to promptly notify Provider of any third party notices that User may receive which could affect Provider’s ability to effectively provide the Services or increase the likelihood that a Claim (as defined below) is brought against User or Provider in connection with the Services, such as notices from the Internal Revenue Service (“IRS”) or other government entities regarding penalties or errors relating to the Services and, if applicable, notices from insurance carriers regarding eligibility, enrollment, payment, or any other communications affecting the contract of services with that insurance carrier.

The Platform, Services and Online Account are intended for use only by persons who are over the age of 13 and reside in the United States, its territories and possessions.

8.              Third Party Subcontractors.

Provider, through its third party hosting subcontractors, will deliver Services via the hosting infrastructure, which is designed to provide commercially reasonable levels of security and availability. User consents to the use of third party hosting services.

The Platform and the Services rely on third party technology and services, such as application programming interfaces, for Third Party Services (as defined below) and web hosting services. Any change to the products or services offered by any of these third party providers may materially and adversely affect, or entirely disable, User’s use of or access to the Platform and the Services. Likewise, Provider cannot guarantee that any User Data hosted on a third party server will remain secure.

 

9.              Third Party Partners.

Through the Platform, User will be able to elect to receive services from partners of Provider (each such service, a “Third Party Service,” and each such partner, a “Partner”). User is solely responsible for, and assumes all risk arising from, User’s election to receive and User’s receipt of any Third Party Service. Provider is not responsible for Third Party Services or any material, information, or results made available through Third Party Services. The applicable Partners may require User to agree to terms and conditions or agreements with respect to their provision of the Third Party Services to User. If User elects to receive a Third Party Service, User authorizes Provider to submit to the applicable Partner any and all documents and information about User, User’s business and User’s business’ employees that are necessary for such Partner to provide the Third Party Service to User, including, without limitation, User’s payroll information, bank account information, User’s employees’ bank account information, and any additional information, such as the personal information of User’s employees, requested by such Partner that User has provided to Provider in connection with this Agreement and User’s receipt of the Services (collectively, the “Shared Information”). User is responsible for the accuracy of all Shared Information. User represents and warrants that User has all the rights in and to any Shared Information necessary to provide Shared Information to Provider and for Provider to provide it to Partners, and that Provider’s use or disclosure of Shared Information as contemplated hereunder will not violate any rights of privacy or other proprietary rights, or any applicable local, state, or federal laws, regulations, orders, or rules. User agrees that by electing to receive a Third Party Service, and by consenting and authorizing Provider to submit User’s Shared Information to a Partner, User has waived and released any Claim against Provider and its directors, officers, and employees arising out of a Partner’s use of User’s Shared Information, even if that use is not authorized by the applicable agreement between User and the Partner.

The Platform and the Services may contain links to third party websites or resources. Provider provides these links only as a convenience and is not responsible for the content, products, or services on or available from those websites or resources, or links displayed on such websites. User acknowledges its sole responsibility for, and assumes all risk arising from, User’s use of any third party websites or resources.

 

10.              Term; Termination; Suspension.

Subject to the Sales Order, the initial term of the Agreement commences on the Contract Effective Date and shall remain in effect until the date that is the amount of months set forth opposite “Initial Term” in the applicable Sales Order following the Service Effective Date (the “Initial Term”). Subject to the Sales Order, upon the expiration of the then-applicable Term (as defined below), the Term shall automatically renew for the time period set forth opposite “Renewal Term” in the applicable Sales Order (each such period, a “Renewal Term” and, together with the Initial Term, the “Term”). Subject to the Sales Order, if there is a Renewal Term noted in the Sales Order, then such Renewal Term shall automatically renew upon expiration until either User or Provider terminates this Agreement as set forth herein.

This Agreement may be terminated by either Party: (i) by providing thirty (30) days written notice prior to the end of the then applicable Term and any such termination shall be effective upon the expiration of the then current Term, (ii) for a material breach by the other Party (other than failure to pay which is subject to immediate termination) which has not been cured within thirty (30) days of notice of such breach, and (iii) immediately, if (a) the other Party ceases doing business or becomes insolvent, (b) the other Party or another threatens to file or files for reorganization or appointment of a receiver, supervisor, assignee, or liquidator over the Party’s assets or property, or (c) any other reason specifically set forth in this Agreement.

This Agreement may be terminated by Provider: (i) without cause, upon sixty (60) days written notice, (ii) on the Service Effective Date, if User has not provided all documentation required for Provider to commence the Services, and (iii) immediately, if (a) as a result of legislative, regulatory, or judicial action, Provider determines that its interests are materially and adversely affected by continuing to provide Services (b) User fails to deposit and maintain sufficient funds in its Bank Account to allow Provider to make all required payroll payments, if applicable, (c) User fails to pay any amounts owed to Provider for the Services, or (d) User undertakes any of the actions prohibited by Section 16. If Provider elects to terminate the Agreement in accordance with clause (ii) above, User will be responsible for payment of the Early Termination Fee (as defined below).

Subject to the Service Terms, this Agreement or any applicable Service (in the event the Sales Order contemplates multiple Services (i.e., Payroll and HR Compliance)) may be terminated by User, without cause, upon sixty (60) days written notice, so long as User promptly pays the Early Termination Fee set forth in the applicable Sales Order (the “Early Termination Fee”). Any such early termination will not relieve User of its responsibility to pay for fees or costs owed to Provider for Services rendered or as otherwise necessary to compensate Provider for the discount in Fees provided to User given its commitment to enter a services agreement with Provider for a Term longer than one month. As such, User acknowledges and agrees that Provider has discounted its Fees for services provided to User under an agreement with a Term longer than one month as Provider’s upfront and out-of-pocket costs can be distributed more evenly over a longer period of time and because committed revenue for a longer period of time supports Provider’s business needs. If a User terminates this Agreement early, such upfront costs are not recoverable and further Provider has lost revenue for a discount that should not have been provided given the shorter term, thus User acknowledges and agrees that the Early Termination Fee adequately represents the lost profits that Provider would have received if the User did not opt for early termination. If applicable, the Early Termination Fee must be paid within thirty (30) days after the date of termination.

Upon termination of this Agreement and receipt by Provider of payment for all amounts owed by User, Provider will make available (in a form determined by Provider), upon request by User, for a period not to exceed ninety (90) days from termination, all of User’s pertinent data, reports, and files stored, if any, as part of the Services. Provider may charge an additional fee for the preparation and delivery of such data, reports, and files. Provider may delete User’s data after the expiration of the ninetieth (90^th) day following termination of this Agreement; provided, however, that Provider is not responsible or liable for the removal or deletion of (or the failure to remove or delete) any User Data. The parties’ rights and obligations under Sections 3 through 7, and 11 through 24, and any sections of the Service Terms which by their nature should survive, shall survive termination of this Agreement.

If a User has contracted with Provider for the provision of multiple Services (see Section 2 above) and User fails to pay any amounts owed to Provider for the provision of any or all of the Services set forth in any applicable Sales Order, then Provider may suspend any or all of the Services, at Provider’s discretion, until User pays any amounts owed to Provider as contemplated by such Sales Order.

 

11.              Indemnification.

User will indemnify and hold harmless Provider and its officers, directors, employees, and agents (the “Provider Indemnified Parties”), from and against any claims, disputes, demands, liabilities, damages, losses, costs, judgements, penalties, fines, and expenses (including, without limitation, reasonable legal and accounting fees) (collectively, “Claims”), arising out of or in any way connected with (i) User’s, any customer of User, or any Authorized User’s access to or use of the Services; (ii) User Data; (iii) User’s violation or alleged violation of this Agreement; (iv) User’s violation or alleged violation of any third party right, including without limitation any right of privacy or publicity, or any right provided by any labor or employment law, rule, or regulation, or any intellectual property right; (v) User’s violation or alleged violation of any applicable law, rule, or regulation, including but not limited to wage and hour, money transmitter and any payroll processing laws and the Bank Secrecy Act and any related anti-money laundering regulations; (vi) User’s violation of the NACHA Rules (as defined below); (vii) User’s gross negligence, fraudulent activity, or willful misconduct; (viii) Provider’s or any other Provider Indemnified Party’s use of or reliance on information or data furnished by User, an employee or independent contractor of User, any Authorized User, or any authorized representative in providing the Services, or otherwise in connection with this Agreement; (ix) actions or activities that Provider or any other Provider Indemnified Party undertakes in connection with the Services or this Agreement at the direct request or instruction of anyone that Provider or any other Provider Indemnified Party reasonably believes to be User, an Authorized User, or an authorized representative (each such action or activity, a “Requested Action”); (x) Provider’s or any other Provider Indemnified Party’s use of or reliance on information or data resulting from such Requested Actions; or (xi) User’s failure, or the failure of any Authorized Users or authorized representatives, to properly follow Provider’s instructions with respect to the Services.

Provider will indemnify and hold harmless User and its officers, directors, employees, and agents (the “User Indemnified Parties”), from and against any Claims arising out of or in any way connected with Provider’s gross negligence, fraudulent activity, or willful misconduct.

 

12.            Warranties and Limitations of Liability.

Provider is not responsible or liable for (i) anyone’s reliance on User Data; (ii) any errors that result, whether directly or indirectly, from Provider’s reliance on information (or modifications to information) provided by User, an employee or independent contractor of User, an Authorized User or any authorized representative or anyone that Provider reasonably believes to be User, an employee or independent contractor of User, an Authorized User or an authorized representative (“User Errors”), including any consequences or Claims directly or indirectly arising from User Errors; (iii) any consequences or Claims directly or indirectly resulting from User’s delay in providing, or User’s failure to provide, Provider with information necessary for its provision of Services; (iv) User’s violation of the NACHA Rules; (v) unauthorized third party actions taken in User’s Online Account and any transactions, consequences, or Claims arising therefrom; (vi) User’s negligence or any negligence of any Authorized Users or authorized representatives; (vii) any Claims, or portions of any Claims, that could have reasonably been avoided or mitigated by User through reasonable efforts; (viii) any circumstances or Claims arising out of or related to a Partner’s use of User’s Shared Information; (ix) any Requested Actions, or any consequences or Claims directly or indirectly resulting therefrom; (x) any issues caused by shipping and handling (i.e., due to errors/omissions of FedEx, UPS, a local courier, etc.), or (xi) User’s failure, or the failure of any Authorized Users or authorized representatives, to properly follow Provider’s instructions with respect to the Services.

Actions initiated by User may cause the products and/or services provided by Provider to irrevocably modify and/or delete User Data. USER ACKNOWLEDGES AND AGREES THAT PROVIDER IS NOT RESPONSIBLE FOR THE LOSS OR MODIFICATION OF ANY USER DATA DUE TO USER’S ACTIONS AND THAT USER’S USE OF THE SERVICES IS AT USER’S OWN RISK.

USER ACKNOWLEDGES AND AGREES THAT THE SERVICES PROVIDED HEREUNDER (INCLUDING, BUT NOT LIMITED TO, ANY AND ALL INFORMATION, MATERIALS, FORMS AND HOSTED SERVICES) ARE NOT INTENDED TO BE AND WILL NOT BE RELIED UPON BY USER AS EITHER LEGAL, FINANCIAL, INSURANCE OR TAX ADVICE. TO THE EXTENT USER REQUIRES ANY SUCH ADVICE, USER REPRESENTS THAT IT WILL SEEK SUCH ADVICE FROM QUALIFIED LEGAL, FINANCIAL, INSURANCE, ACCOUNTING OR OTHER PROFESSIONALS.

PROVIDER MAKES NO WARRANTIES REGARDING THE SERVICES PROVIDED HEREUNDER. USER ACKNOWLEDGES THAT PROVIDER’S SOLE OBLIGATION IS TO PROVIDE THE SERVICES IN A WORKMAN LIKE MANNER AND IN ACCORDANCE WITH THIS AGREEMENT. THEREFORE, THE SERVICES ARE PROVIDED AND ACCEPTED BY USER ON AN “AS IS” BASIS WITHOUT ANY WARRANTY WHATSOEVER. ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ARE SPECIFICALLY EXCLUDED AND DISCLAIMED. PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL MEET USER’S REQUIREMENTS, WILL OPERATE WITHOUT INTERRUPTION, WILL BE ERROR-FREE, COMPLETELY SECURE, OR THAT ALL FAILURES OF THE SERVICES WILL BE CORRECTED.

PROVIDER SHALL NOT BE LIABLE TO USER, ITS USERS, OR ANY THIRD PARTIES FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOSS, LIABILITY OR DAMAGE FROM WRONGFUL DISHONOR RESULTING FROM ANY BANK’S ACTS OR OMISSIONS SERVING AS THE ORIGINATING DEPOSITORY BANK UNDER THE AUTOMATED CLEARING HOUSE NETWORK, ANY LOSS OF USE, LOSS OF BUSINESS, LOSS OF PROFIT, LOSS OR CORRUPTION OF DATA, COST OF DATA RECONSTRUCTION, INTERRUPTION OF BUSINESS, LOSS OF GOODWILL OR ANY AND ALL OTHER DAMAGES OR LOSSES ARISING OUT OF THIS AGREEMENT OR RELATED IN ANY WAY TO THE SERVICES PROVIDED HOWEVER CAUSED, WHETHER IN CONTRACT, TORT, PRODUCT LIABILITY, STATUTE, OR OTHER LEGAL THEORY AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LIABILITY OR DAMAGES OR THE LIKELIHOOD OF SUCH LIABILITY OR DAMAGES WAS KNOWN OR CONTEMPLATED. Provider shall not be liable for any damages to User resulting from any decision by Provider to withhold Services due to concerns regarding User’s creditworthiness or because User failed to provide funds necessary to cover User’s payroll (if applicable), and all applicable tax and other payments.

IN NO EVENT SHALL PROVIDER, ITS AFFILIATES, OR THIRD PARTY SERVICE PROVIDERS TOTAL CUMULATIVE LIABILITY UNDER THIS AGREEMENT FOR DAMAGES OR LIABILITY FOR ANY AND ALL CLAIMS OF ANY TYPE OR CHARACTER MADE BY USER OR ANY THIRD PARTY ARISING UNDER OR RELATED TO THE SERVICES OR THIS AGREEMENT, WHETHER IN TORT, CONTRACT, STATUTE, OR OTHER LEGAL THEORY, EXCEED THE AVERAGE MONTHLY CHARGES FOR THREE (3) MONTHS FOR THE AFFECTED PROVIDER SERVICES OR PRODUCTS DURING THE CALENDAR YEAR THE CLAIM WAS MADE. PROVIDER WILL ISSUE USER A CREDIT EQUAL TO THE APPLICABLE AMOUNT AND ANY SUCH CREDITS WILL BE APPLIED AGAINST SUBSEQUENT FEES OWED BY USER. ALL CLAIMS AGAINST PROVIDER AND ITS AFFILIATES AND SERVICE PROVIDERS INCLUDING SUBSEQUENT CLAIMS WILL BE AGGREGATED TO SATISFY THIS LIMIT AND MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMIT.

 

13.            Duty to Mitigate.

If either Party becomes aware of, or reasonably should have been aware of, any facts, issues, information, or circumstances which are reasonably likely, whether alone or in combination with any other facts, issues, information, or circumstances, to lead to a Claim against Provider or User in connection with this Agreement, such Party must use reasonable efforts to mitigate any loss that may give rise to such a Claim.

 

14.            Confidential Information.

As a result of the dealings between the Parties under this Agreement, certain confidential and proprietary information belonging to Provider or User, including but not limited to pricing information, may be divulged to the other Party, which is a valuable proprietary asset of and disclosure of such would injure Provider or User. Unless necessary to comply with law, the Parties shall at all times not intentionally disclose to any third parties any confidential or proprietary information. Confidential Information shall not include aggregated data or information that (i) is in the public domain through no act or omission of the other Party, (ii) was in the other Party’s lawful possession prior to the disclosure, (iii) is lawfully disclosed to the other Party by a third party without restriction on disclosure, (iv) is independently developed by the other Party, or (v) is data or information not strictly required for the Services to function for which Provider disclaims any and all liability and damages.

 

15.            Intellectual Property.

Provider and its licensors exclusively own all worldwide right, title, and interest in and to the Provider Data, and also in and to the Platform and the Services, including in each case all associated intellectual property rights (“Provider IP”). User acknowledges that the Platform, Services, and Provider Data are protected by copyright, trademark, and other laws of the United States and foreign countries. User agrees not to remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Platform, Services, or Provider Data. This Agreement does not convey any proprietary interest in or to any Provider IP or rights of entitlement to the use thereof except as expressly set forth herein. Any feedback, comments, and suggestions User may provide for improvements to the Platform, Services, or Provider Data (“Feedback”) is given entirely voluntarily and Provider will be free to use, disclose, reproduce, license, or otherwise distribute and exploit such Feedback as it sees fit, entirely without obligation or restriction of any kind. Feedback includes, without limitation, feedback User provides to Provider in response to any surveys Provider conducts, through any available technology, about User’s experience.

Subject to User’s compliance with this Agreement, Provider grants User a limited, non-exclusive, non-transferable, non-sublicensable license to access, view, and download Provider Data solely in connection with User’s permitted use of the Platform for User’s own behalf.

User represents and warrants that User owns all User Data or that User has all rights that are necessary to grant Provider or a Partner the license rights in User Data required to perform the Services or Third Party Services under this Agreement. In the event applicable, User acknowledges, agrees and consents to Provider selling, sharing and/or processing User Data to third parties in accordance with all applicable law and the Privacy Policy.

 

16.            General Prohibitions.

User shall not take any of the following actions:

·       Violate any applicable law, rule, or regulation, including, but not limited to, the NACHA Operating Rules, as they may be amended from time to time (as amended, the “NACHA Rules”).

·       Conduct any business or activity or solicit the performance of any activity that is prohibited by law, tortuous, or interferes upon the use of Provider’s products or services by other licensees and customers.

·       Disseminate, display, send, transmit or receive any material that, to a reasonable person may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening, malicious, or violent, regardless of whether the material or its dissemination is unlawful;

·       Disseminate or transmit unsolicited messages, chain letters or unsolicited commercial email including unintended sending of unsolicited commercial email due to unauthorized access of the Services, whether or not the recipient wishes to receive such mailings;

·       Access, send, receive, display, disclose, or store any content in violation of any copyright, right of publicity, patent, trademark, service mark, trade name, trade secret or other intellectual property right or in violation of any applicable agreement, or without authorization;

·       Create a false identity or to otherwise attempt to mislead any person as to the identity, source or origin of any communication;

·       Export, re-export or permit downloading of any message or content in violation of any export or import law, regulation or restriction of the United States and its agencies or authorities, or without all required approvals, licenses and/or exemptions;

·       Interfere, disrupt or attempt to gain unauthorized access to any computer system, server, network or account for which User does not have authorization to access or at a level exceeding User’s authorization;

·       Disseminate or transmit any virus, worms, trojan horse or other malicious, harmful or disabling data, work, code or program; or

·       Engage in any other activity deemed by Provider to be in conflict with the spirit or intent of this Agreement or any Provider policy as examples listed in this Section are not exhaustive.

 

17.            Services Availability.

Provider makes no representations or warranties about the uptime, availability, or permissibility of the Platform or Services in any particular geographical location. From time to time, scheduled maintenance or emergency maintenance may occur, and during such maintenance periods, the Services may be inaccessible and unavailable, with or without notice to User.

 

18.            Notice.

Unless otherwise stated in this Agreement, all notices hereunder shall be in writing and deemed given to the address specified on the (a) Sales Order, for User and (b) in this Section, for Provider: (i) when personally delivered, (ii) one (1) day after delivered to an overnight courier guaranteeing next day delivery, (iii) three (3) days after deposit in the United States mail, postage prepaid, sent certified or registered, or (iv) when sent via email. For the avoidance of doubt, all notices from User to cancel and/or terminate the Agreement, in accordance with Section 10, must be sent to the email specified below. Notice information set forth in this Section or on the Sales Order may be updated at any time via written notice to the other Party.

 

FOR TERMINATION AND/OR CANCELLATION NOTICES: hubleaders@asuresoftware.com

 

FOR ALL OTHER NOTICES:

 

Asure Customer & IP HoldCo LLC

405 Colorado Street, Suite 1800

Austin, TX 78701

Attn: Legal Department

Phone: 888-323-8835

Email: legal@asuresoftware.com

 

19.            Entire Agreement; Electronic Signature.

This Agreement constitutes the entire understanding between the Parties with respect to the Services to be provided by Provider and supersedes all prior agreements and understandings. Electronic signatures are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility.

 

20.            Modification; Waiver; Severability.

Provider may modify this Agreement (including any Service Terms), at any time, in Provider’s sole discretion. If Provider makes any such modification, Provider shall notify User by posting the modified agreement on the Platform, Site or via other communications. User must promptly review any such modifications. If User continues to use the Services after User has been notified of the modifications to this Agreement and such modified Agreement has been posted to the Site or the Platform, then User will be deemed to have agreed to such modified Agreement and will be bound by the terms of such modified Agreement. If User does not agree to be bound by any modification, then User may not continue to use the Services. Excluding the foregoing, this Agreement, including any exhibits or applicable online terms, may be altered, waived in part, or amended only by written agreement duly executed by the Parties. The failure of Provider to enforce any provision hereof shall not constitute the permanent waiver of such provision. The provisions of this Agreement are severable and any provision determined to be void or unenforceable shall be ineffective to the extent of such invalidity only and shall be replaced with an enforceable provision which achieves to the greatest extent possible the Parties’ original intent.

 

21.            Governing Law; Submission to Jurisdiction; Waiver of Jury Trial

This Agreement shall be governed by and shall be construed in accordance with the laws of the State of Delaware without regard to the conflicts of law principles of such state.

The Parties hereby irrevocably submit to the exclusive jurisdiction of the state or federal courts located in Delaware, or, if such courts shall not have jurisdiction, any federal court of the United States of America or other Delaware state court located in the State of Delaware, and appropriate appellate courts therefrom, over any claims, suits, actions, proceedings or other disputes arising out of, resulting from or relating in any way to the Agreement or any of the transactions contemplated hereby (including any claims, suits, actions, proceedings or other disputes to interpret, apply or enforce the provisions of this Agreement or the duties, obligations or liabilities among the Parties, or the rights or powers of, or restrictions on, the User or the Provider), and each Party hereby irrevocably agrees that all claims in respect of such dispute may be heard and determined in such courts. The Parties hereby irrevocably waive, to the fullest extent permitted by applicable law, any objection that they may now or hereafter have to the laying of venue of any dispute arising out of or relating to the Agreement or any of the transactions contemplated hereby brought in such courts or any defense of inconvenient forum for the maintenance of such dispute, in each case regardless of whether such claims, suits, actions, proceedings or other disputes sound in contract, tort, fraud or otherwise, are based on common law, statutory, equitable, legal or other grounds, or are derivative or direct. Each of the Parties hereby agrees that a judgment in any such dispute may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. This consent to jurisdiction is being given solely for purposes of the Agreement and is not intended to, and shall not, confer consent to jurisdiction with respect to any other dispute in which a Party to the Agreement may become involved.

TO THE FULLEST EXTENT PERMITTED BY LAW, EACH OF THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THE AGREEMENT.

 

22.            Assignment.

Any attempt by User to assign or transfer this Agreement without consent will be null and void; provided, however, that consent shall not be required in the event User assigns its rights and obligations hereunder, by written notice to the Provider, to a successor or transferee (whether by merger, consolidation, purchase or otherwise) of either (i) all or substantially all of the assets of User or (ii) all or substantially all of the assets of the business or any part of the business to which it pertains. The provisions of any assigned agreement shall inure to the benefit of, and be binding upon, the Parties and their respective successors and assigns.

 

23.            Force Majeure.

Neither Provider nor User will be liable or responsible for any breach, failure in performance, or delays in performance due to strikes, riots, acts of God, computer attacks or malicious attacks or hacks including on the internet, an internet service provider, telecommunications or hosting facility, shortages of labor or materials, attacks, war, governmental laws, regulations, or restrictions or any other cause whatsoever beyond the control of Provider or User, except nothing relieves User of its obligations to make payments of fees to Provider (each, a “Force Majeure Event”).

 

24.            Publicity.

User hereby authorizes and permits Provider to use User’s name in User lists, marketing materials, and on its website as a User of Provider and a User of its Services.

25.           Insurance. During the duration of this Agreement and if User has contracted for the provision of the Payroll Reseller, PTM – Reseller – Full-Service, or PTM – Self-Service set forth in Section 2 above, User must maintain insurance with reputable insurers to cover its own risks and liabilities and those of its personnel as follows: (i) commercial general liability: $1,000,000 per occurrence / $2,000,000 annual aggregate; (ii) professional liability (errors & omissions): $2,000,000 annual aggregate; and (iii) cyber liability (including data breach): $2,000,000 annual aggregate. Upon Provider’s request, User shall promptly provide Provider with evidence of the foregoing coverages in a form and manner satisfactory to Provider.