THIS MASTER SUBSCRIPTION AGREEMENT (the “Agreement”) is incorporated in, and is an integral part of, the Client Services Agreement (CSA) between Client and Payday LLC (“Payday”). Client and Payday may be referred to herein individually as a Party and together as the Parties. The purpose of this Agreement is to set forth the terms and conditions under which Payday will provide to Client certain Services (as are hereinafter defined), including access to services and systems of which Payday is an authorized reseller.
WHEREAS, Client desires to subscribe to certain Services that are offered by Payday, which are more fully described in the Client Services Agreement in which this Agreement is incorporated by reference and of which it is a part, and are defined below; and
WHEREAS, in the course of providing the desired Services to Client, Payday may find it useful or necessary to grant to Client access to certain software and systems, which may be proprietary to Payday or may be provided to Payday by third parties; and
WHEREAS, Payday agrees to provide the Services to Client in accordance with the terms and conditions set forth herein; and
NOW, THEREFORE, in consideration of the mutual promises, covenants, representations and warranties hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
1.1 “Agreement” means collectively, this Master Subscription Agreement, together with each Order Form and all attachments, exhibits, schedules, policies, and instructions incorporated by reference thereto.
1.2 “Business Day” means any day on which Payday is regularly open for business and the Federal Depository is open for business.
1.3 “Client” means the Client identified as a Party above and any affiliate or subsidiary of Client and any other person or entity for which Payday is providing Services pursuant to the attached Order Form.
1.4 “Client Data” means information submitted by, or entered by Users including, but not limited to, business information, bank account information, tax information, accounting information, employee information, attachments, content, transactions and reports.
1.5 “Confidential Information” means any and all information disclosed by either party (the “Disclosing Party”) to the other (the “Receiving Party”), which is marked “confidential” or “proprietary” or which should reasonably be understood by the Receiving Party to be confidential or proprietary, including, but not limited to, the terms and conditions of this Agreement, and any information that relates to business plans, services, marketing or finances, research, product plans, products, developments, inventions, processes, designs, drawings, engineering, formulae, markets, software (including source and object code), hardware configuration, computer programs, and algorithms of the Disclosing Party.
1.6 “Documentation” means the written instructions and User Guides, including any updates thereto, relating to the use of the Services.
1.7 “Intellectual Property” means any intellectual property or proprietary rights, including but not limited to software (including source and object code), content, copyright rights copyright, moral rights, trademarks (including logos, slogans, trade names, service marks), patent rights (including patent applications and disclosures), know-how, rights of priority, and trade secret rights, recognized in any country or jurisdiction in the world.
1.8 “Services” means, inclusively, (i) all of the services described in the Client Services Agreement and the Order Form to which this Agreement is attached, and (ii) the provision of access to online Internet applications and platforms, and (iii) all other services performed by Payday by request from Client or pursuant to a separate Order Form.
1.9 “System” means the software and hardware used to provide the Services to Client over the Internet, including application software, Web and/or other Internet servers, any associated offline components, and all updates thereto.
1.10 “User” and “Users” means individuals who are authorized by Client to use the Services, for whom subscriptions to a Service have been purchased, and who have been supplied user identifications and passwords by Client (or by Payday at Company’s request). Users may include but are not limited to Client’s employees, consultants, contractors and agents; or third parties with which Client transacts business.
1. License. Subject to the terms and conditions of the applicable Order Form, Payday grants Client a non-exclusive, non-transferable, non-sub-licensable right to have Users access and use the Services solely for Client’s internal business purposes. Client agrees that Client’s purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Payday regarding future functionality or features. Notwithstanding the provision by Payday of the Services, Client acknowledges that (i) Client, and not Payday, remains solely responsible for all decisions affecting its employees; (ii) Client remains responsible for the manner in which it uses the Services, including the manner in which it interprets and acts upon any human resources guidance provided by Payday and (iii) Client will use the Services only for its intended purpose and will maintain its internal systems infrastructure as required by Payday in order to effectively provide the Services.
3. Restrictions. Client will not, and will not allow any third party to (a) modify, copy, or otherwise reproduce the System in whole or in part; (b) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the software used in the System; (c) provide, lease or lend the Services or System to any third party except as expressly authorized hereunder; (d) remove any proprietary notices or labels displayed on the System; (e) modify or create a derivative work of any part of the System; (f) use the Services or System for any unlawful purpose; or (g) create Internet “links” to or from the System, or “frame” or “mirror” any of the content which forms part of the System.
4. Third-Party Providers. Certain third-party providers offer products and services related to the Services, including implementation, customization and other consulting services related to Client’s use of the Services and applications (both offline and online) that work in conjunction with the Services, such as by exchanging data with the Services or by offering additional functionality within the user interface of the Services. Payday does not warrant any such third-party providers, any of their products or services or the compatibility of such products or services with the Services and Systems. Any exchange of data or other interaction between Client and a third-party provider, and any purchase by Client of any product or service offered by such third-party provider, is solely between Client and such third-party provider.
5. Use of the Services. Client shall (i) be responsible for each User’s compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Client Data and of the means by which Client acquired Client’s Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Payday of any such unauthorized access or use as soon as practicable, but in any case not later than twenty-four (24) hours after becoming aware of such unauthorized access or use, and (iv) use the Services only in accordance with the Documentation and applicable laws and government regulations. Client shall not (a) make the Services available to anyone other than properly authorized Users who are not in breach of any obligations imposed upon Users under this Agreement, (b) sell, resell, rent, license or lease the Services, (c) use the Services 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, (d) use the Services to store or transmit malicious code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services, Systems or other related systems or networks.
6. Compliance with Laws. Client acknowledges that the Services are designed to assist Client in complying with applicable law and governmental regulations, but that Client, and not Payday, shall be solely responsible for (i) compliance with all laws and governmental regulations applicable to its business and (ii) any use Client may make of Payday’s Services (including any reports and worksheets produced in connection therewith) to assist it in complying with such laws and governmental regulations. Client acknowledges that, in making the Services available, Payday is not acting as an investment advisor, broker-dealer, insurance agent or intermediary or a financial or benefit planner.
3. Fees, Duration and Payment
3.1 Fees. Payday’s current fee schedule is set forth on the applicable Order Form signed by the Client. Payday reserves the right to change fees as provided in the Client Services Agreement.
3.2 Duration of User Subscriptions. Unless otherwise stated in the applicable Order Form: (a) all initial User subscriptions will begin and continue for the initial Subscription Period set forth in the applicable Order Form or in the Client Services Agreement (the “Initial Subscription Period”); (b) any additional User subscriptions added after the beginning of a Subscription Period, but before commencement of the next Subscription Period, will continue for the duration of that Subscription Period; (c) after the end of the Initial Subscription Period, all current User subscriptions will automatically renew for additional Subscription Period(s) of one fee payment cycle (as specified in the Order Form) at the Payday list price in effect at the date of renewal and subject to the then current version of this Master Subscription Agreement on the date of renewal, unless either party gives the other party notice of non-renewal at least one fee payment cycle prior to the end of the relevant Subscription Period. By way of example, if subscription fee is “per-pay-period”, then the fee payment cycle is one pay period (e.g. weekly, bi-weekly, semi-monthly, etc.); and if the subscription fee is “per month”, then the fee payment cycle is one month.
3.3 Payment. Unless otherwise specified in a written agreement between the Parties, all fees are payable by direct debit to Client’s bank account at least 24 hours prior to each pay date. Subscription fees, whether expressed in the Order Form as Per Employee per Month or otherwise, will be invoiced on the same frequency as the payroll applicable to the covered employees and will be added to the amounts invoiced for payroll services. Fees for services other than payroll will be invoiced on the frequency indicated in the Order Form and may be added to an invoice for payroll services or billed separately. In either case, however, payment of the invoice will be made by direct debit to the Client’s bank account at the time of presentation of the invoice.
3.4 Termination for Non-payment. In the event that funds are unavailable from Client’s account upon presentation of an invoice, and Client fails to make sufficient funds available within 24 hours of notice given by Payday of the insufficiency, in addition to any of its other rights or remedies, Payday reserves the right to immediately terminate this Agreement and Client’s access to the Services and to void the Order Form.
3.5 Late Payments. Any late payments will be subject to the fees and interest specified in the Client Services Agreement.
3.6 Taxes. The fees and expenses payable by Client are net amounts payable per the Order Form or hereunder, exclusive of all sales, use, withholding, excise, value added, and ad valorem taxes incurred by Client or imposed on Payday in the performance of this Agreement or otherwise due as a result of this Agreement or the Client Services Agreement. Client will pay any and all such taxes and duties, customs fees and similar charges, whether directly to the appropriate taxing authority or by reimbursing Payday for payments it makes on Client’s behalf. The foregoing does not apply to taxes based solely on Payday’s income or its license to do business in any state or locality.
3.7 Billing and Contact Information. Client is responsible for providing Payday with complete, current and accurate billing and contact information at all times. Failure to notify Payday of a change in billing or contact information will not excuse Client from any obligations or requirements for timely payment of amounts due to Payday.
4. Property Rights
4.1 Ownership. The Systems and Services licensed to Client hereunder shall at all times remain the sole, exclusive, and absolute property of Payday, Payday’s licensors, or any third parties who have authorized Payday to use or resell the Systems and Services. Client acknowledges that the Systems and Services are protected by United States copyright laws, by the common law, or by laws of other nations. Any rights not expressly granted are reserved by Payday and its licensors. Client receives no rights to any Systems or Services, any materials relating thereto, or any modifications, enhancements, customizations, updates, revisions or derivative works thereof, or any results of consulting services, whether made pursuant to this Agreement or a separate statement of work. Client acknowledges that no aspects of any of the Services are provided on a work-for-hire basis.
4.2 Feedback. Client may submit comments, information, questions, data, ideas, description of processes, or other information to Payday (“Feedback”). For any and all Feedback, Client grants to Payday a non-exclusive, worldwide, perpetual, irrevocable and sub-licensable license, under all Intellectual Property rights covering or embodied by the Feedback, to use, exploit, reproduce, advertise, publish, incorporate, distribute, disclose, perform, translate, modify and otherwise create derivative works and compilations from any Feedback for any lawful purpose. Client represents that it holds all intellectual or proprietary rights necessary to grant to Payday and /or its licensors such license, and that the Feedback will not violate the personal, proprietary or Intellectual Property rights of any third party.
5. Confidentiality and Security
5.1 Confidential Information. Each Party hereby agrees that it is bound by and will comply with the Confidentiality provisions of the Client Services Agreement. Client acknowledges that the Documentation and all information relating to the functionality, programming and structure of any programming included in the Services constitute Payday’s Confidential Information, which are also the valuable trade secrets of Payday. Payday acknowledges that the Client Data constitutes Confidential Information of the Client, which is also part of the valuable trade secrets of Company.
5.2 Security. Payday uses commercially reasonable practices, including encryption and firewalls, to ensure that Client Data is disclosed only to Client and Client’s authorized Users. However, Client acknowledges that the Internet is an open system and Payday cannot and does not warrant or guarantee that third parties cannot or will not intercept or modify Client Data. Payday is not responsible for Client’s access to the Internet, for any interception or interruption of any communications through the Internet, or for changes to or losses of data through the Internet. Client acknowledges that Payday does not review the accuracy of completeness of any information submitted by Client or its Users through the Site. Client agrees to take commercially reasonable precautions to maintain the privacy of usernames and passwords for any of the Services. In order to protect Client’s data, Payday may suspend Client’s or Client’s Users’ use of the Systems or Services via the Internet immediately without notice, pending an investigation, if any breach of security is suspected.
5.3 Passwords. As part of the registration process, Client will select User passwords for accounts. Client is responsible for maintaining the confidentiality of User passwords, and Client agrees that Payday has no liability with regard to the use of such passwords by third parties. Client agrees to notify Payday as soon as possible if Client has any reason to believe that the security of Client’s account or any User passwords has been compromised. Client acknowledges, however, that Payday is not liable for the consequences of any such compromise and may not be able to respond to notice of compromise if notice is given at any time other than on a Business Day.
5.6 Client Data. Without limiting the above, Payday will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Client Data. Payday will not (a) modify Client Data, (b) disclose Client Data except as compelled by law in accordance with Section 5.2 or as expressly permitted in writing by Client, or (c) access Client Data except to provide the Services or prevent or address service or technical problems, or at Client’s request in connection with support matters. The foregoing limitations on disclosure of Client data notwithstanding, Payday may assume Client’s consent to disclose Client data to third parties when such disclosure is necessary to the provision of the Services, such as uploading data to insurers, third party administrators, brokers, accountants and others. Similarly, Payday is not responsible for any unauthorized access to data by parties to whom Client has granted access to the Services, whether or not Client has subsequently withdrawn permission for such parties to access the data.
6.1 Systems. Payday, its licensors and providers, use commercially reasonable efforts to maintain availability of the System used to provide the Services 24 hours per day, 365 days per week, subject, however to scheduled downtime for maintenance and to unscheduled interruptions that are beyond Payday’s control. Payday does not guarantee uninterrupted availability of the System. Normal software or hardware maintenance and upgrades are scheduled for nights and weekends and are designed to cause a minimum amount of interruption to Services and System availability. Client will be notified of scheduled interruptions in advance. In the event that an unscheduled interruption occurs, Payday will use commercially reasonable efforts to resolve the problem and return the System to availability as soon as practicable. During scheduled and unscheduled interruptions, Client may be unable to transmit and receive data through the System. In the event that assistance from Client is needed to restore the System to working order, Client agrees to not unreasonably refuse such assistance.
6.2 Suspension of Services. From time to time, it may become necessary for Payday to suspend or modify provision of the Services and/or to suspend or limit Client’s access to the System for administrative or other purposes. In such events, Payday will incur no liability to Client or Client’s employees for any inconvenience, loss of productivity, or any other claim.
7. Implementation and Support Services
7.1 Implementation. Upon execution and delivery of the Order Form, Client will pay the implementation fees, if any, set forth in the Order Form.
7.2 Technical Support. Payday will provide to Client the Standard Support specified in the Order Form. Client specifically acknowledges and agrees that Payday is not obligated to maintain or support any unique customization to the System or Services except under a separate agreement signed by the Parties.
7.3 Consulting Services. Any consulting services, training or other requirements not expressly stated in this Agreement or in a separate statement of work signed by the Parties are outside the scope of this Agreement and will be provided, if at all, for additional fees. Fees for such items are payable as specified in the applicable Order Form and will be paid upon receipt of invoice.
8. Term and Termination
8.1 Term. This Agreement commences on the Effective Date of the first Order Form and will terminate when (a) all Subscription Periods and any renewals thereof entered into pursuant to this Agreement have expired or been terminated, or (b) this Agreement is otherwise terminated as provided for herein.
8.2 Termination for Cause. Either Party may terminate this Agreement and the affected Order Form for cause as specified in the Client Services Agreement. Additionally, either Party may upon 30 days written notice terminate this Agreement and the Order Form if the other Party commits an act of bankruptcy or becomes the subject of any Bankruptcy Act proceeding or becomes insolvent, or if any substantial part of its property becomes subject to any levy, seizure, assignment, application or sale for or by any creditor or governmental agency, or it suffers a material adverse change in its financial condition. 8.3 Effect of Termination. Without limiting the provisions regarding termination in the Client Services Agreement, termination will not relieve Client of the obligation to pay any fees due or payable to Payday prior to the effective date of termination, including payroll processing fees, quarterly and annual fees, implementation fees, training fees, User subscription fees, consulting services fees, or any other fees or payments that Client has committed to under the Agreement.
9. Representations and Warranties
9.1 Authority. Each Party represents to the other that it is a valid legal entity and is in good standing or validly existing under the laws of the state of its organization and residence. Each Party represents that it has all the requisite legal power and authority to execute, deliver and perform its obligations under the Agreement; that the execution, delivery and performance of the Agreement has been duly authorized; that the Agreement is enforceable in accordance with its terms; that no approval, authorization or consent of any governmental or regulatory authorities is required to be obtained or made in order for it to enter into and perform its obligations under the Agreement.
9.2 Warranty. Payday warrants that: (i) the Services shall be provided to Client in accordance with the terms of this Agreement; (ii) Payday will perform the Services in a good, professional, and diligent manner using personnel with the level of skill commensurate with the Services to be performed; (iii) Payday will comply with all laws applicable to its business. Client acknowledges that effective delivery of the Services is dependent upon the accuracy of the information and representation provided by Client. Payday shall be entitled to rely solely on the representations, authorizations, and information provided by Client.
9.3 Links to Third Party Sites. Payday may provide links to third party Internet Sites. Links to and from a Payday site to other third party sites do not constitute an endorsement by Payday of such third party sites or the acceptance of responsibility for the content on such sites.
9.4 Notices and Correction of Errors. Client will notify Payday in writing of any Errors. Payday will use commercially reasonable efforts, at its own expense, to determine if there is an Error, and to correct or remedy Errors within 30 days of such notice. Client will provide reasonably appropriate assistance to Payday in reproducing and validating the presence of Errors. Client will make reasonably appropriate adjustments to mitigate adverse effects of any Error until Payday corrects or remedies such Error. Nothing herein shall be construed to obligate Payday to correct any Errors that it cannot reproduce.
9.5 DISCLAIMER OF ALL OTHER WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED HEREIN, PAYDAY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SERVICES, SYSTEM, AND DOCUMENTATION, WHETHER EXPRESS OR IMPLIED, BY OPERATION OF LAW, REPRESENTATION, STATEMENTS OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, IMPLIED FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. CLIENT ACKNOWLEDGES AND AGREES THAT NEITHER PAYDAY NOR ANY SYSTEM, SERVICES, DOCUMENTATION, DATA, OR MATERIALS PROVIDED BY PAYDAY WILL BE CONSTRUED AS PROVIDING REGULATORY, COMPLIANCE, RISK MANAGEMENT, ACCOUNTING, TAXATION, FINANCIAL, INVESTMENT, LEGAL OR OTHER ADVICE TO CLIENT, USERS, OR ANY THIRD PARTY. EACH PARTY WILL BE SOLELY AND INDIVIDUALLY RESPONSIBLE TO COMPLY WITH ALL LAWS AND REGULATIONS RELATING TO ITS RESPECTIVE BUSINESS OPERATIONS.
9.6 Remedies. For any breach of the warranties contained in Section 9.2 above, Client’s exclusive remedy, and Payday’s entire liability, shall be (i) in the case of an Error in the Services, the correction of Errors that cause breach of the warranty, or if Payday is unable to make the Services operate as warranted, Client shall be entitled to terminate this Agreement; and (ii) in the case of a breach of warranty with respect to the consulting services, the re-performance of the consulting services, or if Payday is unable to perform the consulting services as warranted, Client shall be entitled to recover the fees paid to Payday for the nonconforming consulting services.
10.1 Indemnification by Payday. Payday agrees to indemnify Client against any losses or damages finally awarded against Client and incurred in connection with a third party claim alleging that the Client’s use of the unaltered Services or System infringes or misappropriates any U.S. patent, copyright, or trade secret of such third party, provided that Client (a) provides prompt written notice of such claim to Payday, (b) grants Payday the sole right to defend such claim, and (c) provides to Payday all reasonable assistance. In the event of a claim or threatened claim under this Section by a third party, Payday may, including but not limited to, at its sole option, (i) revise the Services and/or System so that they are no longer infringing, (ii) obtain the right for Client to continue using the Services and System, or (iii) terminate the Agreement upon 10 days’ notice. THIS SECTION 10.1 REPRESENTS THE SOLE AND EXCLUSIVE LIABILITY OF PAYDAY AND THE EXCLUSIVE REMEDY OF CLIENT FOR INFRINGEMENT OR MISAPPROPRIATION OF THIRD PARTY RIGHTS.
10.2 Indemnification by Client. Subject to the Agreement, Client will defend, indemnify and hold Payday harmless against any loss or damage incurred in connection with claims made or brought against Payday by a third party alleging that the collection and use of Client Data infringes the rights of a third party; provided, that Payday (a) provides prompt written notice of such claim to Client, (b) grants Client the sole right to defend such claim, and (c) provides to Client all reasonable assistance.
11. Limitation of Liability
11.1 LIMITED TO ACTUAL DAMAGES. EXCEPT FOR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10, THE NON-EMPLOYMENT OBLIGATIONS IN SECTION 12, AND THE CONFIDENTIALITY OBLIGATIONS UNDER SECTION 5.1, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING IN ANY WAY OUT OF THIS AGREEMENT, EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE, NOR SHALL THE AGGREGATE LIABILITY OF ONE PARTY TO THE OTHER FOR DAMAGES UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION (AND WHETHER IN CONTRACT OR IN TORT) EXCEED $100,000, EXCLUSIVE OF ANY AMOUNTS DUE AND UNPAID TO PAYDAY UNDER THIS AGREEMENT.
12. General and Miscellaneous Provisions
12.1 Notices. Except as otherwise specified in the Agreement, all notices under the Agreement will be in writing and will be delivered or sent by (a) first class U.S. mail, registered or certified, return receipt requested, postage pre-paid; (b) U.S. express mail, or national express courier with a tracking system, or (c) via e-mail with automated read receipt functionality enabled to the address and main contact as specified in the Order Form. Notices will be deemed given on the day actually received by the Party to whom the notice is addressed.
12.2 Relationship of the Parties. The relationship between Payday and Client is that of independent contractors. Neither Party has any authority to act on behalf of the other Party or to bind it, and in no event will the Parties be construed to be partners, employer-employee, or agents of each other.
12.3 Governing Law. The validity, construction and interpretation of this Agreement will be governed by the internal laws of the Commonwealth of Virginia, excluding its conflict of law’s provisions. Any controversy, claim or action arising out of, concerning and/or relating to this Agreement will be resolved by a court of competent jurisdiction and venue located in the Commonwealth of Virginia.
12.4 Assignment. This Agreement may not be assigned by either one of the Parties by operation of law or otherwise, without the prior written consent of the other Party, which consent will not be unreasonably withheld; provided, however, that (i) such consent is not required in connection with the assignment of the Agreement to its affiliate or pursuant to a merger, acquisition, corporate reorganization or sale of all or substantially all of the assigning party’s assets, and (ii) in no event may Client assign this Agreement to an actual, indirect or potential competitor of Payday, or to any party with which Payday is involved in a dispute, without the express prior written permission of Payday. Any assignment made in violation of this Section 13.4 shall be null and void ab initio.
12.5 Force Majeure. Notwithstanding any provision contained in the Agreement, neither Party will be liable to the other to the extent fulfillment or performance of any terms or provisions of the Agreement are delayed or prevented by revolution or other civil disorders; wars; strikes; labor disputes; electrical equipment or availability failure; fires; floods; acts of God; government action; or, without limiting the foregoing, any other causes not within its control and which, by the exercise of reasonable diligence, it is unable to prevent. This clause will not apply to the payment of any sums due under the Agreement by either Party to the other. In the event either Party suffers an ongoing force majeure event that prevents its satisfying its obligations under this Agreement for more than thirty (30) consecutive days, the other Party may terminate this Agreement upon three (3) days prior written notice.
12.6 Compliance with Laws. Each Party will be responsible for compliance with all applicable laws and government regulations in the process of marketing, delivering, and/or using the Services.
12.7 Public Announcements. Neither Party will make any public announcement using the name or logo of the other Party, or use the other Party’s name or logo in any publicly available materials, without the other Party’s written permission, which permission shall not be unreasonably withheld.
12.8 Headings, Construction and Severability. Headings in the Agreement are for reference purposes only and will not affect the interpretation or meaning of the Agreement. If any provision of the Agreement is held by an arbitrator or a court of competent jurisdiction to be contrary to law, then the remaining provisions of the Agreement will remain in full force and effect. No delay or omission by either Party to exercise any right or power it has under this Agreement will be construed as a waiver of such right or power. A waiver by either Party of any breach by the other Party will not be construed to be a waiver of any succeeding breach or any other covenant by the other Party. All waivers must be in writing and signed by the Party waiving its rights. This Agreement shall be construed within its fair meaning and no inference shall be drawn against the drafting Party in interpreting this Agreement. All references to “day” or “days” shall mean calendar day or calendar days, unless there is specific reference to the contrary.
12.9 Counterparts and Copies. This Agreement may be executed simultaneously in any number of counterparts, each of which will be deemed an original, but all of which together constitute one and the same Agreement. The Parties agree that a facsimile copy and/or a PDF copy of this Agreement bearing the signatures of the parties shall be considered as if this was the Agreement bearing the original signatures of the parties.
12.10 Legal Expenses. In the event that any dispute arising from this Agreement is pursued by litigation, the substantially prevailing Party in any such dispute shall, in addition to recovering all costs of suit or litigation (including all fees and costs paid to expert witnesses), be entitled to an award of reasonable attorneys’ fees and expenses.
12.11 Amendments. This Agreement, including any exhibits and schedules, may be supplemented, amended or modified only by mutual written agreement of the Parties. No supplement, amendment, or modification to this Agreement shall be binding unless it is in writing and signed by an authorized representative of both Client and Payday. Any amendment of this Agreement must be signed by both Parties in the same manner as provided in 12.9 herein.
12.12 Binding Effect. This Agreement shall inure to the benefit of, and be binding upon, the Parties and their respective heirs, successors, representatives, and assigns.
12.13 Definitions. Terms and phrases that are defined in any part of this Agreement shall have the defined meanings wherever used throughout the Agreement. The terms “hereunder” and “herein” and similar terms used in this Agreement shall refer to this Agreement in its entirety and not merely to the section, paragraph, or subparagraph in which the term is used.
12.14 Further Acts. Each of the Parties shall execute and deliver any and all additional papers, documents, and other assurances and shall do any and all acts and things reasonably necessary in connection with the performances of their obligations hereunder and to carry out the intent of the Parties hereto.
12.15 Entire Agreement. These Terms and Conditions are hereby incorporated by reference for purposes of the Agreement between the Parties. The Agreement, together with the Client Services Agreement and Order Form to which it is attached, constitutes the entire agreement between Payday and Client with respect to the subject matter hereof. The Agreement supersedes all prior negotiations, agreements, and undertakings between the Parties with respect to such subject matter. Additional Order Forms may be added to the Agreement by reference to this Agreement, provided that each such Order Form is signed by both parties. No term or condition contained in Client’s purchase order or similar document will apply and/or control unless specifically agreed to by Payday in writing and signed by Payday, even if Payday has accepted the order set forth in such purchase order, and all such terms or conditions are otherwise hereby expressly rejected by Payday.
The Software Applications referenced in Sections 1.8 and 1.9 of the Agreement, for which Service Provider provides access and support to Client are as follows:
Software/Product | Ownership
ReadyPay Online | Taslar Inc
TimeWorks Plus | SwipeClock LLC
Nimble Reporting | Augusta Benefits Inc
ReadySetWork | RSW LLC
USTelePunch | USTelePunch Inc.
Any software application or service to which Client gains access or subscribes in connection with the Services and which is not listed hereinabove is provided by a Third-Party Provider and is subject to the provisions of Section 2.4 of the Agreement.