Terms
Master Service Agreement
This Master Service Agreement (this “Agreement”) is entered on the signature date by and between Clarity HCM, LLC, a Florida limited liability company (“Clarity HCM”) and ______________________, the (“Employer”). This Agreement encompasses the following General Terms and Conditions for the software or services (Service) utilized by the Employer. In consideration of the mutual promises contained herein, the parties intending to be legally bound agree as follows:
1. Service Access Rights, Provision, and Use:
1.2. Use of Service. Employer will access and use the Service in accordance with the Documentation and such other instructions and reasonable policies established by Clarity HCM, in each case as in effect from time to time. Employer will not, and will cause the Users not to: (i) resell, sublicense, lease, time-share or otherwise make the Service available to any third party; (ii) send or store infringing or unlawful material; (iii) send or store Malicious Code; (iv) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Service or the data contained therein; (v) modify, copy or create derivative works based on the Service; (vi) reverse engineer the Service; (vii) access the Service for the purpose of building a competitive product or service or copying its features or user interface; (viii) use the Service, or permit it to be used, for purposes of product evaluation, benchmarking or other comparative analysis intended for publication without Clarity HCM’s prior written consent; (ix) permit access to the Service by a third party direct competitor of Clarity HCM; (x) copy the Service or any software component provided therein; (xi) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of the Service is compiled or interpreted, and Employer acknowledges that nothing in this Agreement will be construed to grant Employer any right to obtain or use such source code; (xii) modify the Service or the Documentation, or create any derivative work from any of the foregoing; or (xiii) assign, sublicense, sell, resell, lease, rent or otherwise transfer or convey, or pledge as security or otherwise encumber, Employer’s rights under this Agreement, in each case, other than as otherwise expressly permitted hereby or by Clarity HCM in writing prior to the first occurrence of any such event.
1.3. No Implied Licenses. Employer acknowledges that there are no licenses granted by implication under this Agreement. Clarity HCM
reserves all rights that are not expressly granted. Employer acknowledges that, as between the parties hereto, Clarity HCM owns all intellectual property rights and proprietary interests that are embodied in, or practiced by, the Service and the Documentation. This Agreement contemplates access and use rights with respect to the Service and no software is being provided and no licenses with regard to any software are being granted hereunder.
2. Term & Termination:
2.2. Term of Services. Clarity HCM will not be obligated to provide access to or be liable for the Service until Clarity HCM notifies Employer of its completed implementation. Certain functions available through the Service, including tax filing (the “Tax Filing Services”), direct deposit (“Direct Deposit Services”), ACH, debit, Clarity HCM Checks and administrative service outsourcing (ASO), are available only for as long as Employer meets Clarity HCM’s eligibility requirements as set by Clarity HCM from time to time with respect to such services. Clarity HCM may, in its sole discretion, upon written notice to Employer modify (including but not limited to modifying the funding authorization and timing of funds transfer with respect to Direct Deposit Services) or terminate any such service immediately and without notice to Employer if
(i) Employer defaults in the payment of any amounts required for Clarity HCM to provide the services (including but not limited to payroll and Tax Filing Services) or Clarity HCM’s transactions on Employer’s behalf are returned for any reason for non-sufficient funds (a “NSF”),
(ii) in Clarity HCM’s sole opinion, Employer fails to meet Clarity HCM’s eligibility requirements for such services,
(iii) Employer or any agent or employee of Employer is indicted of a criminal violation of law applicable to the Employers’ use of the Service (including but not limited to any crime involving fraud, misappropriation or embezzlement) or
(iv) Employer breaches Section 2.2. Clarity HCM may terminate services or features offered through the Service immediately without notice in the event that Clarity HCM has discontinued providing such service to direct employer clients and provided such termination does not materially and adversely affect the Employer’s ability to use the Service.
2.3. Effect of Termination.
(i) Tax Filing Services. If (a) Employer has Tax Filing Services as of the termination date of this Agreement, (b) such termination date is the last day of a an applicable tax period and (c) Employer has paid all Fees for Services for such Tax Filing Services through the effective termination date of this Agreement and provided Clarity HCM has received cash required to pay all liabilities required to make such tax filings, Clarity HCM shall make tax filings for the period ending on the termination date. Other than as set forth in the immediately prior sentence, unless otherwise agreed to by Clarity HCM in writing, upon termination of this Agreement, Clarity HCM shall not make any further tax or other filings on Employer’s behalf.
(ii) Return of Trust Accounts. Upon termination of this Agreement for any reason, Clarity HCM shall, within a reasonable amount of time which shall not exceed 30 days, return to Employer all funds held in trust on behalf of Employer, less the amount of any written uncashed checks written on Employer’s behalf to employees or other third parties. Within 210 days after termination of this Agreement, Clarity HCM shall return to Employer an amount equal to the aggregate amount of any such checks written on Employer’s behalf prior to the termination date that are unclaimed and uncashed as of the expiration date of each such check.
(iii) Survival. In the event of termination of this Agreement for any reason, this Section 3.3, Section 4 (Representations, Warranties, and Disclaimers), Section 5 (Fees & Additional Products), Section 6 (Indemnification), Section 7 (Confidentiality), Section 8 (Limitation of Liability; Remedies), Section 9 (Miscellaneous), and any other terms that pursuant to their terms survive the termination of this Agreement will survive termination of this Agreement.
3. Additional Service Terms:
3.2. Employer Use of the Service Regarding Compliance with Laws. The Service is designed to assist Employer in complying with applicable laws and governmental regulations. Nevertheless, Employer (and not Clarity HCM) will be responsible for compliance by Employer with all applicable laws and regulations related to the operation of Employer’s business, including payment of all salary and wages to employees and related taxes in accordance with applicable law. Employer will not rely solely on its use of the Service in complying with any laws and governmental regulations. Employer understands that Clarity HCM’s Service it not designed to meet data privacy requirements outside the United States and may not meet GDPR or other foreign standards.
3.3. Impound Service; Benefit Trust Accounts. If Employer is receiving any services in connection with the Service that require Clarity HCM to impound funds from Employer’s account to pay Employer’s third party payment obligations such as Tax Filing Services, Worker’s Compensation Insurance, Benefit Plan Administration Services, 401k and Pension Services, Screening Services, Direct Deposit and ACH Debit Services and/or Check™ Services (each, an “Impound Service”), Employer will have sufficient, available funds in Employer’s account within the deadline established by Clarity HCM to satisfy such third-party payment obligations in their entirety. Clarity HCM will not be responsible for any penalty or fees associated with ‘late payment,’ ‘incomplete payment,’ or ‘no payment’ to third parties if funds are not available to impound as needed and determined by Clarity HCM. Clarity HCM is hereby expressly authorized by Employer, and by the fiduciaries of Employer’s employee benefit plans, to transfer funds to an Clarity HCM or Employer established Benefits Trust Account (“BTA”). Any interest earned on balances in an Clarity HCM established BTA will be for the sole benefit of Clarity HCM and is contemplated in the price quotation. Clarity HCM established BTAs may contain more than one Clarity HCM client’s funds.
3.4. Payroll Services. If the services provided hereunder include Direct Deposit Services, Employer authorizes Clarity HCM to debit
Employer Accounts in the amount of the payments to be made on behalf of Employer in accordance with this Agreement, including any Fees. The funds transfer from Employer to Clarity HCM will occur on the second Business Day prior to the date that payroll deposits are to be made to the Payee Accounts (the “Check Date”). Employer will arrange with Clarity HCM to transmit its payroll data including payroll amounts, payroll dates, employee bank account information, and any other information provided to Clarity HCM in connection with the Services (collectively, the “Payroll Data”). Clarity HCM will timely attempt to process but shall not be liable for stop payments and direct deposit reversals requested by Employer. Clarity HCM will retain the interest earned on Employer funds held in a Clarity HCM account while payment of such funds to others is pending.
3.5. The Work Number from Equifax. This service is available to all Clarity HCM Payroll clients at no additional cost. If you choose to opt out of this service, you may do so by notifying us in writing during your implementation process. You may subsequently opt-in at any time. The Work Number from Equifax scope of Service can be found at www.isolvedhcm.com/legal/agreements/description-of-services-and-notice-to-furnishers
3.6. Employer and Employee Authorizations. Employer shall obtain and maintain, at its sole cost and expense, any and all licenses, permits and other authorizations necessary to perform its business and duties hereunder in a lawful manner including the debiting and crediting to the designated bank accounts of Employer’s employees (the “Payee Accounts”) and the debiting of payments from the Employer’s authorized accounts (the “Employer Accounts”)
(i) In the event of Employer has insufficient funds available for any payment obligation under this Agreement and Clarity HCM receives an NSF, Clarity HCM is authorized to send a reversal file (“Reversal”) to one or more of the Payee Accounts or other payees that were paid by Clarity HCM in connection with such NSF. Furthermore, Employer agrees to fully reimburse Clarity HCM within 48 hours for any non-recovered funds from such Reversal. After Employer pays the unrecovered amounts, Clarity HCM will endeavor in good faith to recover the funds and, upon recovery of funds, if any, Clarity HCM will distribute those funds to Employer. Employer may not make any claim for reimbursement of unrecovered funds related to any Reversal from Clarity HCM. Clarity HCM reserves the right to require Employer provide funds in advance via Wire Transmission in connection to NSF for future funding purposes with advance notice.
(ii) For payrolls processed with a total liability of more than $500,000 USD or where Employer is not receiving tax services from Clarity HCM, Clarity HCM will require a wire transfer of funds one banking day prior to check date.
4. Representations, Warranties, and Disclaimers.
4.2. Clarity HCM Representations and Warranties. Clarity HCM represents and warrants (i) that Clarity HCM has the power and authority to execute and deliver this Agreement and to perform its obligations hereunder, (ii) that Clarity HCM has duly executed and delivered this Agreement and (iii) assuming due execution by Employer, this Agreement constitutes the legal, valid, and binding obligation of Clarity HCM enforceable against it in accordance with its terms. Clarity HCM covenants that Clarity HCM will perform its obligations under this Agreement, including provide the Service and services provided thereunder, in accordance with all applicable laws and regulations.
4.3. Limitation and Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE, THE DOCUMENTATION, AND ALL SERVICES PERFORMED BY CLARITY HCM HEREUNDER ARE PROVIDED “AS IS,” AND CLARITY HCM HEREBY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, SYSTEM INTEGRATION AND DATA ACCURACY AND CLARITY HCM DOES NOT WARRANT THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.
4.4. Additional Disclaimers. Employer acknowledges and agrees
(i) that Clarity HCM is not providing legal, financial, benefits, or tax advice to Employer and Employer acknowledges it is solely responsible for the timely filing of all payroll and other tax returns and the timely payment of all payroll and other taxes for its employees;
(ii) certain Services will be provided by third parties, other than Clarity HCM and its Affiliates, and Clarity HCM will not be liable for Services provided by such third parties; and (iii) certain Services require certain power of attorney, ACH or other authorizations of Employer in favor of Clarity HCM and its Affiliates, and Employer will timely execute or cause to be executed such power of attorney, documents, instruments or other authorizations that are reasonably required by Clarity HCM to provide the Service, and the execution and delivery of such will be a condition to Clarity HCM obligation to provide such Services.
5. Fees & Additional Products:
5.2. Implementation Fees. Employer will pay Clarity HCM the one-time implementation fees listed on Schedule I (Service Fees) in full when they process their first payroll. Employer will have a designated contact sign Clarity HCM’s Implementation Sign off document. At the completion of the Implementation Sign off acknowledgement, any further configuration changes or system builds may incur a charge. This charge will be communicated and signed by the Employer prior to Clarity HCM conducting the changes.
5.3. Exception Fees. In addition to the Fees set forth on Schedule I (“Exception Fees”), Employer agrees to pay to Clarity HCM exception fees in the event they occur. Exception Fees may include fees for non-sufficient funds in an Employer Account (NSF), Notification of Change (NOC) charges, invalid ACH return fees, next day ACH fees, wiring fees, stop payment/void check fees, damaged or non-returned hardware timeclocks, and missing or applied for tax identification numbers.
5.4. Termination Fees. In addition to the Fees set forth in Schedule I, Employer agrees to pay three (3) months of proposed services (Schedule I) if the Employer terminates agreement prior to the end of Initial Period, fails to provide 30 days written notice of termination after the Initial Period, or if the Employer is removed from Services for failure to meet Clarity HCM’s eligibility requirements for such services.
6. Indemnification:
(i) any unauthorized representations or warranties made by Employer or its agents regarding the Service or any Clarity HCM Products; (ii) any failure by Employer to comply with applicable laws;
(iii) any allegations that Employer’s data infringes or misappropriates a third party’s intellectual property or other rights; (iv) any breach by Employer of this Agreement or any action by Clarity HCM in reliance on any information or authorization provided to Clarity HCM by Employer; (v) any claim brought against Clarity HCM by any employee of Employer, including resulting from Employer’s breach of any obligation to employee; and (vi) any NSF Transfer. Employer acknowledges and agrees that each Affiliate of Employer is bound by the covenants and obligations of the Employer under this Agreement and Employer will cause all such Affiliates to abide by such covenants and obligations. Notwithstanding anything contained herein or the fact that no Affiliates of Employer are a signatory to this Agreement, Employer agrees that Employer will indemnify, defend and hold harmless, the Clarity HCM Indemnitees for any and all actions of its Affiliates that would otherwise constitute a breach of this Agreement or obligation of any Affiliate if such Affiliate were a signatory to this Agreement.
6.2. Clarity HCM Indemnity. Clarity HCM will defend, indemnify, and hold Employer, its directors, officers, employees, shareholders, members, and affiliated companies (the “Employer Indemnitees”) harmless from and against any Claims made or brought against Employer Indemnitees by a third party alleging that the use of the Service as contemplated hereunder and in the applicable Documentation infringes the U.S. intellectual property rights of a third party (“IP Rights”). Clarity HCM may, at its sole option and expense:
(i) procure for Employer the right to continue using the Service under the terms of this Agreement; or
(ii) replace or modify the Service to be non-infringing without material decrease in functionality. Clarity HCM assumes no liability for infringement claims arising from (a) the combination of the Service with products not provided by Clarity HCM, (b) any modification to the Service unless such modification was made by Clarity HCM or at the written direction of Clarity HCM, or (c) use of the Service not in accordance with their applicable Documentation. THE PROVISIONS OF THIS SECTION 6 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF CLARITY HCM, AND THE EXCLUSIVE REMEDY OF EMPLOYER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT RIGHT, COPYRIGHT, TRADE SECRET, TRADEMARK OR OTHER IP RIGHT.
a. Claims.
The indemnified party will (i) promptly notify the indemnifying party of any Claim for which it believes it is entitled to indemnification, (ii) grant the indemnifying party sole control of the defense of such Claim (provided it agrees to be liable for such indemnity) and (iii) provide the indemnifying party with assistance reasonably necessary to perform the above. The indemnified party may, at its option and expense, be represented by separate counsel in any such action. No party entitled to indemnification hereunder will be subject to the terms of a settlement without such party’s prior written consent.
(iii) Confidentiality and Protection of Client Data:
a. Confidentiality. Clarity HCM agrees to keep confidential any information provided by the Employer to the same degree it would with respect to its own confidential information and will use said information solely for the purposes of payroll and related services processing. Clarity HCM will not disclose this information to anyone without the permission of the Employer, or unless required to do so pursuant to a legal process. Clarity HCM will maintain adequate security over Employer information using commercially reasonable safeguards over the hardware, software, personnel, and processes used to support the delivery of payroll and related services to the Employer and in compliance with federal, state, and local laws governing the employee and payee data including California SB1386 and Massachusetts 201 CMR 17.00.
b. Acknowledgement. Services with Clarity HCM involves transmission of data and information over the internet. Employer acknowledges that neither the security of transmissions over the internet nor of the Employers hardware used to access the internet can be guaranteed by Clarity HCM. Clarity HCM will use encryption and other industry safeguards to protect such information when being transmitted. Employer will maintain adequate security over the hardware, personnel, and processes used to access Clarity HCM’s software and services including usernames and passwords.
(iv) Limitation of Liability; Remedies:
a. CLARITY HCM WILL NOT BE LIABLE IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE FOR DAMAGES SUFFERED OR INCURRED BY EMPLOYER FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL, OR PUNITIVE DAMAGES (INCLUDING LOST DATA, LOST BUSINESS OR PROFITS, AND INTERRUPTION OF BUSINESS), WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE. WITH THE EXCEPTION OF A PARTY’S OBLIGATIONS UNDER SECTIONS 6 (INDEMNIFICATION) or 7 (CONFIDENTIALITY) OR THE TOTAL CUMULATIVE LIABILITY OF CLARITY HCM FOR ANY CLAIMS ARISING OUT OF THIS AGREEMENT (INCLUDING WITH RESPECT TO PRODUCTS AND SERVICES PROVIDED HEREUNDER) IS LIMITED TO THE TOTAL AMOUNT ACTUALLY PAID BY EMPLOYER TO CLARITY HCM DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE.
b. Clarity HCM, its third-party ACH processor and or the originating bank will utilize security procedures to attempt to prevent problems with transmission of instructions. Such security procedures will include (a) a unique file identification number and transmission password, (b) encryption, and (c) automated verification of total dollars and number of items in the file. Employer agrees that this procedure constitutes a commercially reasonable method of providing security against unauthorized instructions. Employer will be bound by any debit/credit instruction issued by or on behalf of Employer and received and verified by the originating bank in accordance with such security procedure, and neither Clarity HCM, third party ACH processors nor the originating bank will be liable for any loss sustained as a consequence of any instructions that are not authenticated if Clarity HCM has appropriately adhered to its procedures. Neither Clarity HCM, third party ACH processors, nor the originating bank will be liable for any damages to Employer arising from any decision to refrain from or delay originating debit/credit entries or issuing any check in connection with Employer’s payroll, (i) after reasonable efforts to verify such debit/credit entries by the required security procedure have failed or (ii) because Clarity HCM has not received timely funds from Employer. Employer agrees that Clarity HCM will not be liable for any damages to Employer arising from any bank decision to withhold the release of an Employer payroll that is processed by check. Regardless of any such delay in the release of any check, Employer will still be obligated to pay Clarity HCM for applicable payroll processing charges.
(v) Miscellaneous:
a. Entire Agreement. The parties agree that all prior and contemporaneous understandings and agreements made or had between the parties are superseded by this Agreement, which constitutes the complete and exclusive statement of the terms and conditions relating to the subject matter of this Agreement. This Agreement cannot be altered, amended, or modified except in writing executed by each party. The waiver of, or failure to exercise, any right under this Agreement will not be deemed a waiver of any right hereunder, except to the extent in a writing executed by such party. This Agreement may be executed in several counterparts, and by electronic or .pdf signature, each of which may be deemed an original, and all of which taken together will constitute one single agreement between the parties.
b. Notification of Future Changes. Clarity HCM may, from time to time, update or modify the terms of this Agreement. Any such changes will be posted online at www.clarity-hcm.com/terms and communication of changes will be posted to the Clients login page. Employer is responsible for reviewing such updates periodically when notified of changes.
c. Choice of Law. This Agreement and its subject matter will be construed and enforced in accordance with the laws of the State of Florida without regard for its choice of law provisions. The parties agree to submit to the exclusive jurisdiction of the state or federal courts located in Pasco County, Florida. In the event any proceedings, arbitration or legal action is brought by either party against the other arising out of or in connection with this Agreement, the prevailing party will be entitled to recover its costs and reasonable attorney’s fees. If any provision of this Agreement is held invalid or unenforceable by any court or agency of competent jurisdiction, it will be severed, and the remaining terms of this Agreement shall remain in full force and effect.
d. Assignment. Clarity HCM will have the right to assign its rights under this Agreement to any third party provided Clarity HCM gives written notice to Employer of such proposed assignment at least 60 days prior to such assignment taking effect. Employer may not assign any of its rights under this Agreement to any third party without the prior written consent of Clarity HCM. For purposes hereof, a change in control of more than 50% of Employer’s equity ownership (or its parent corporation’s ownership), whether by merger, sale of equity securities or otherwise, will constitute an assignment of this Agreement by Employer. Clarity HCM may assign any or all of its rights under this Agreement to any affiliate of Clarity HCM without prior notice. Nothing in this Agreement creates, or will be deemed to create, third party beneficiaries of or under this Agreement. Clarity HCM has no obligation to any third party (including, without limitation, Employer’s employees and/or any taxing authorities) by virtue of this Agreement.
e. Relationship of Parties. Clarity HCM is an independent contractor and not an employee, partner, or agent of Employer, and the
employees of Employer are not entitled to any of the benefits of employment granted by Clarity HCM to its own employees. Neither party will have any authority to enter into any contract or other binding agreement on behalf of the other parties.
f. 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 obligation hereunder as a result of an act of God, war, earthquake, civil disobedience, court order, labor dispute, or other cause beyond the party’s reasonable control.
g. Notices. Any notice required or permitted to be given hereunder will be deemed given the day following the date of the postmark thereof if sent prepaid certified or registered mail, return receipt requested or by confirmed facsimile, or by commercial overnight delivery service. Until either party advises the other party of a change in how notices will be addressed, all notices pursuant to this Agreement will be addressed to the address of the parties shown on the signature page to this Agreement.