Payfactors Terms and Conditions

By signing a PayFactors® Subscription Order Form (the “Order”), each customer (a “Customer”) of PayFactors Group, LLC (“PayFactors”) agrees to and accepts these PayFactors Terms and Conditions (together with the Order, the “Agreement”), and together such documents constitute the entire agreement between PayFactors and a Customer and exclusively governs each Customer’s use of the PayFactors goods and services subscribed for by such Customer in the Order.

1) Initial Term. The initial term of Customer’s subscription will be as set forth in the Order (the “Initial Term”). Customer’s subscription will renew at the end of the Initial Term and each subsequent term (each a “Renewal Term” and, the Initial Term together with all Renewal Terms, the “Term”), only upon mutual written consent.

2) Product Description. The products and services ordered by the Customer are as set forth in the Order (collectively, the “Services”).

3) Payment Terms. PayFactors will invoice Customer for the annual license fee set on the Order (the “Annual License Fee”) for the upcoming subscription year immediately prior to or in the beginning of such subscription year. Customer shall pay the Annual License Fee and any System Set-Up Services Fees or Professional Services Fees (each as defined below) net thirty (30)-days from the invoice date. Initial System Set-Up Fees are payable one-time and are non-refundable upon payment. Reasonable travel and out-of-pocket expenses incurred by PayFactors on Customer’s behalf (including, without limitation, to perform the Professional Services or the System Set-Up Services) will be billed separately, as incurred. All fees are expressed in U.S. dollars and include no taxes unless a separate line item is added for taxes on the invoice. If Customer is a tax-exempt organization, PayFactors requires a tax exempt certificate at the time of execution of this Agreement in order to exclude any applicable taxes from Customer’s invoice. Overdue payments shall bear interest at the lesser of twelve percent (12%) per annum or the maximum rate allowed under applicable law.

4) License Grant. PayFactors grants, and Customer accepts, a license to use and access the Services and any proprietary PayFactors data licensed by or made available to Customer via on-line software, including without limitation the data and information made available through the Services (collectively, “PayFactors Data”), and all updates, upgrades and improvements released generally by PayFactors during the Term. This license is limited, worldwide, nonexclusive, non-transferable, non-sublicensable and subject to this Agreement (including, without limitation, Section 6 below).

5) PayFactors Accounts & Authorized Users. Customer will receive the number of PayFactors accounts indicated on the Order (“Accounts”). Each Account will have one password that will permit one User (as defined below) to access PayFactors and to store one set of system preferences and data search-lists subject to the terms of this Agreement. Customer agrees to implement reasonable controls to ensure that its use does not exceed the maximum number of Accounts, Users, and FTE’s (as defined below) served. PayFactors and the related PayFactors Data may be used only by Customer’s directors, officers, employees and onsite contractors given passwords by Customer (“Users”). Customer agrees to provide PayFactors with the names and email addresses of all Users upon PayFactors request. Customer acknowledges that PayFactors may monitor Customer’s use of the Services to ensure that it remains in compliance with this Agreement for the duration of the Term. Customer shall be responsible for all actions of a User with respect to any of the Services and any breach by a User of this Agreement shall constitute a breach by Customer. For purposes hereof, “Employees” includes full-time, part-time and union employees.

6) Usage Restrictions. Users may access the Services and PayFactors Data only in connection with the internal operations of Customer’s business. Users may not: (a) reverse engineer, decompile or disassemble PayFactors Data, any PayFactors software, code or any of their respective elements or any other PayFactors intellectual property related to the Services (collectively, the “PayFactors IP”); (b) copy, alter, modify, adapt, translate or create derivative works from PayFactors IP or any portion of thereof; (c) make any of the Services or PayFactors IP available for third-party use; or (d) remove or alter any copyright, trademark or other proprietary notices from PayFactors IP. Customer agrees that, during the Term and for two years afterward, it will not engage in the business of selling compensation planning software, and/or compensation data of any kind and will not solicit for employment any PayFactors employee or consultant or encourage any PayFactors employee or consultant to terminate his or her employment with PayFactors; provided, however, that this Section 6 shall not restrict Customer from hiring individuals that voluntarily approach Customer for employment or respond to general advertising by Customer that are not specifically directed at any PayFactors employee.

7) System Support and System Set-Up and Professional Services. During the Term, PayFactors will provide, free of charge, phone, email and web-based support and training to Customer from 9:00 AM until 8:00 PM (EST), Monday through Friday (except for PayFactors recognized holidays). Customer will be responsible for fielding and consolidating initial support requests, verifying the existence of software issues, answering software-use questions, and managing system-administration functions. All on-site professional and/or consulting services shall be provided to Customer upon Customer request, at an additional cost to be mutually agreed upon. During the Term, and as a part of the Services ordered in the Order, PayFactors agrees to configure the PayFactors software necessary for the Services (the “System Set-Up Services”) and provide customer support for the Services (the “Professional Services”). If Customer fails to notify PayFactors in writing of its rejection of the Professional Services or System Set-Up Services within five business days after such services are performed, the Professional Services and System Set-Up Services will be deemed accepted. The Customer’s sole remedy hereunder with respect to any nonconforming services that have not been accepted shall be to require PayFactors to re-deliver such non-conforming services.

8) Termination. Either party may terminate this Agreement before the end of the Initial Term or any subsequent Renewal Term only if the other party has breached a material term of the Agreement, and the breaching party has failed to remedy such breach within thirty (30) calendar days following written notice from the non-breaching party. If PayFactors commits a material breach and Customer terminates the Agreement as a result of such material breach, PayFactors will refund an amount equal to one-twelfth of the Annual License Fee paid by Customer for the subscription year in which the termination occurs, multiplied by the number of full calendar months remaining in that subscription year. Upon any termination of this Agreement, Customer shall immediately cease all use of the Services and PayFactors shall revoke all passwords and access to the Services. In addition, if Customer fails to make any payment hereunder, PayFactors may immediately suspend Customer’s access to the Services; such suspension will not modify the terms and conditions set forth in this Agreement.

9) Warranties. Each party represents and warrants to the other party that (i) it has full right, power and authority to execute and deliver this Agreement and to perform its obligations hereunder; (ii) the performance, execution and delivery of this Agreement does not violate any of such party’s agreements, organizational documents or obligations or any applicable law (including those governing privacy such as data security regulations); and (iii) it will comply with protocols for notification in case of data privacy breach. Customer represents and warrants to PayFactors that the Customer Data and its provision to PayFactors does not and will not violate the intellectual property rights of any third party or any applicable law (including, without limitation, data security laws). PayFactors warrants that the PayFactors Services will materially conform to the descriptions of the Services provided by PayFactors for such services, provided that such Services are used by Customer in the manner intended and as authorized by this Agreement, and further provided that PayFactors makes no warranties regarding PayFactors performance or conformance to such specifications if used by Customer in a manner other than as intended and as authorized by this Agreement. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WARRANTIES SET FORTH IN THIS SECTION 9 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS OF QUALITY, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. PAYFACTORS DOES NOT WARRANT THE ACCURACY, ADEQUACY, COMPLETENESS, OR TIMELINESS OF THE PAYFACTORS SERVICES OR THE PAYFACTORS DATA. To the extent any warranty claim is not waived, PayFactors sole and exclusive obligation for warranty claims shall be, at PayFactors option, to make the PayFactors Services operate as warranted, or if PayFactors is unable to do so, to terminate the Agreement and return one-twelfth of the Annual License Fee actually paid by Customer for the subscription year in which termination occurs, multiplied by the number of full calendar months remaining in that subscription year.

10) Limitation of Liability. EXCEPT FOR LIABILITY ARISING UNDER SECTIONS 6, 11, 12, 13 AND 14, IN NO EVENT WILL THE LIABILITY OF EITHER PARTY FOR DIRECT DAMAGES EXCEED THE TOTAL ANNUAL FEES PAID BY CUSTOMER FOR THE SUBSCRIPTION TERM TO WHICH THE CLAIM RELATES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR LIABILITY ARISING UNDER SECTIONS 6, 11, 12, 13 AND 14, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY IN CONTRACT, TORT, OR OTHERWISE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOST PROFITS, REVENUE OR DATA) OR PUNITIVE DAMAGES ARISING OUT OF ANY PROVISION OF THIS AGREEMENT, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL PAYFACTORS HAVE ANY LIABILITY FOR CLAIMS RELATING TO BUSINESS DECISIONS MADE BY CUSTOMER IN RELIANCE UPON ANY OF THE SERVICES.

11) Intellectual Property Ownership. Customer understands and agrees that the PayFactors IP is the property of PayFactors and is protected by United States and international intellectual property laws and treaties. PayFactors retains all right, title and interest in the PayFactors IP. Except as otherwise expressly granted in this Agreement, no license, right or interest in any PayFactors IP is granted hereunder. The Services and any modifications to the Services (including without limitation any inventions, creations, and improvements conceived) made or provided by PayFactors pursuant to the Agreement, whether alone or with any contribution from Customer or its personnel, are PayFactors intellectual property. To the extent Customer or its personnel may acquire any right or interest therein by operation of law, Customer irrevocably assigns all such right and interest exclusively to PayFactors. Any employee data, company data, or job files, proprietary survey data or job description files supplied by Customer (collectively, the “Customer Data”) is and will remain Customer’s intellectual property.

12) Confidentiality. Each party shall treat as confidential all Confidential Information (as defined below) of the other party, shall not use such Confidential Information except to exercise its rights and perform its obligations under this Agreement, and shall not disclose such Confidential Information to any third party. Without limiting the foregoing, each party shall use at least the same degree of care, but not less than a reasonable degree of care, it uses to prevent the disclosure of its own confidential information to prevent the disclosure of Confidential Information of the other party. Each party may disclose Confidential Information of the other party on a need-to-know basis to its contractors who are subject to confidentiality agreements requiring them to maintain such information in confidence and use it only to facilitate the performance of their services on behalf of the receiving party. The receiving party may disclose Confidential Information of the other party to the extent such disclosure is required by law or order of a court or other governmental authority, provided that the receiving party shall use reasonable efforts to promptly notify the other party prior to such disclosure to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Each party may disclose the existence of this Agreement and the relationship of the parties, but agrees that the specific terms of this Agreement will be treated as Confidential Information; provided, however, that each party may disclose the terms of this Agreement to those with a need to know and under a duty of confidentiality such as accountants, lawyers, bankers, potential investors and potential acquirors. In consideration for the Services being performed hereunder, Customer hereby grants PayFactors the right to utilize Customer Data for normative research so long as such data is used only in aggregated and anonymous format (i.e. so that personally identifiable information allowing the identification of individual employees is removed, the names of Customer’s clients are removed, and data is aggregated such that none of the Customer Data is reported or made available as part of such normative research), for normative research, analyses and reporting purposes only. “Confidential Information” means any information disclosed by a party to the other party, directly or indirectly, which, (a) if in written, graphic, machine-readable or other tangible form, is marked as “confidential” or “proprietary,” (b) if disclosed orally or by demonstration, is identified at the time of initial disclosure as confidential and is confirmed in writing to the receiving party to be “confidential” or “proprietary” within 30 days of such disclosure, (c) is specifically deemed to be confidential by the terms of this Agreement, or (d) reasonably appears to be confidential or proprietary because of the circumstances of disclosure and the nature of the information itself. Confidential Information will also include information disclosed by third parties to a disclosing party under an obligation of confidentiality. PayFactors IP and the data contained in the Peer Services other than any such data provided by Customer is deemed Confidential Information of PayFactors and Customer Data is deemed Confidential Information of Customer. “Confidential Information” excludes information that: (a) is known publicly at the time of the disclosure or becomes known publicly after disclosure through no fault of the receiving party, (b) is known to the receiving party, without restriction, at the time of disclosure or becomes known to the receiving party, without restriction, from a source other than the disclosing party not bound by confidentiality obligations to the disclosing party, or (c) is independently developed by the receiving party without use of the Confidential Information as demonstrated by the written records of the receiving party.

13) Indemnification by PayFactors. PayFactors will defend, indemnify, and hold harmless Customer against all liabilities, damages, losses, claims and expenses, including reasonable attorneys’ fees, incurred by Customer that arise from any third-party claim alleging that the PayFactors Services or the PayFactors Data (collectively, the “Indemnified Products”) infringes the United States copyright, trademark, or service mark rights of any third party (an “Indemnified Claim”), if Customer: (a) has used the Indemnified Products in full compliance with this Agreement; (b) promptly notifies PayFactors of the claim; (c) allows PayFactors to have sole control of the defense and settlement of an Indemnified Claim (though Customer may participate in its own defense at its own expense); and (d) provides PayFactors with the authority, information and assistance that PayFactors deems reasonably necessary for the defense and settlement of the claim. Customer shall not consent to any judgment or decree or do any other act in compromise of any such claim without first obtaining PayFactors written consent. If an Indemnified Claim is brought or credibly threatened, PayFactors shall have the option, at its sole expense, to obtain for Customer the right to continue using the Indemnified Products, or modify the Indemnified Products so that they become non-infringing. If neither of the foregoing remedies are commercially feasible, PayFactors may terminate the license for the infringing product and refund an amount equal to one-twelfth of the applicable Annual License Fee paid by Customer for the subscription year in which the termination occurs, multiplied by the number of full calendar months remaining in that subscription year. The indemnity set forth in this Section 13 shall be Customer’s sole and exclusive remedy for any intellectual property infringement claim arising out of Customer’s use of the Services.

14) Indemnification by Customer. Customer will defend, indemnify, and hold harmless PayFactors against all liabilities, damages, losses, claims and expenses, including reasonable attorneys’ fees, incurred by PayFactors that arise from any third-party claim relating to the Customer Data, if PayFactors: (a) has used such Customer Data in full compliance with this Agreement; (b) promptly notifies Customer of the claim; (c) allows Customer to have sole control of the defense and settlement of such claim (though PayFactors may participate in its own defense at its own expense); and (d) provides Customer with the authority, information and assistance that Customer deems reasonably necessary for the defense and settlement of the claim. PayFactors shall not consent to any judgment or decree or do any other act in compromise of any such claim without first obtaining Customer’s written consent.

15) Peer Services. As part of the Services, PayFactors hereby grants Customer a limited license to have access to PayFactors’ peer services, which are services offered by PayFactors whereby Customer shares anonymized employee data with other companies and has access to the aggregated data of such companies for internal purposes (the “Peer Services”). PayFactors reserves the right to terminate Customer’s access to all or any part of the Peer Services and the license granted in this Section 15, at any time, with or without notice to Customer, but termination of the Peer Services shall not affect the other Services. In consideration for the Peer Services being provided hereunder, Customer (a) has granted PayFactors the right to utilize its compensation data as part of the Peer Services so long as such data is used only in aggregated and anonymous format (i.e. so that personally identifiable information allowing the identification of individual employees is removed and data is aggregated such that none of such data is reported or made available other than on an aggregated basis) and (b) hereby grants PayFactors the right to utilize Customer’s name to identify Customer as the member of any group within the Peer Services. Once (a) PayFactors has revoked Customer’s access to the Peer Services or (b) Customer notifies PayFactors in writing that it is requesting that PayFactors terminate its access to the Peer Services, Customer’s employee data and name shall be removed from the Peer Services. Customer represents and warrants to PayFactors that it has the right to allow the use of its compensation data and name as contemplated by this Section 15 and agrees to indemnify PayFactors against any third party claims with respect to a breach of this representation and warranty. THE CUSTOMER ACKNOWLEDGES THAT (A) THE DATA PROVIDED THROUGH THE PEER SERVICES AND THE PEER SERVICES ARE BEING PROVIDED “AS IS” AND “AS AVAILABLE” AND (B) THE DATA IN THE PEER SERVICES IS BEING PROVIDED TO PAYFACTORS BY THIRD PARTIES AND PAYFACTORS DOES NOT WARRANT THE ACCURACY, ADEQUACY, TIMELINESS OR COMPLETENESS OF SUCH DATA. ANY USE BY CUSTOMER OF THE PEER SERVICES OR DATA CONTAINED THEREIN IS AT CUSTOMER’S SOLE RISK.

16) Miscellaneous. PayFactors may assign this Agreement to an affiliate or to a successor to all or substantially all of its business or assets (whether through merger, stock sale, asset sale or other transaction). This Agreement, when executed, shall comprise the entire agreement between Customer and PayFactors with respect to the subject matter hereof, and shall supersede all preceding agreements and proposals, whether oral, written, or otherwise that relate to the Services and products ordered in an Order. The Agreement and all of its provisions may not be amended or waived unless agreed upon by the parties hereto. Terms and conditions of this Agreement are severable. If any provision is deemed illegal or unenforceable, all other provisions will remain in effect. This Agreement may be executed in counterparts. A facsimile or PDF of a signed copy of this Agreement or other electronic signature received from Customer may be relied upon as an original. Neither PayFactors or Customer shall be responsible for delays or performance failures, other than Customer’s payment obligations hereunder, that are caused from events that are beyond their reasonable control and without its fault or negligence, including, without limitation, acts of God, nature, riots, acts of war, fire or earthquake. This Agreement shall be governed and construed under the laws of the Commonwealth of Massachusetts, as if performed exclusively in Massachusetts by Massachusetts residents. In no event shall this Agreement be governed by the United Nations Convention on Contracts for the International Sale of Goods. The parties hereby irrevocably and unconditionally submit to the exclusive jurisdiction of the federal and state courts located in Boston, Massachusetts for the purpose of any suit, action or other proceeding arising out of or based upon this Agreement and agree not to commence any suit, action or other proceeding arising out of or based upon this Agreement except in the federal and state courts located in Boston, Massachusetts, and agree not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court. All required notices will be delivered by reputable overnight delivery service and by e-mail to the addresses set forth in the Order. Customer agrees to allow disclosure by PayFactors in one or more press releases, and in related discussions with PayFactors customers, prospective customers, and industry/financial analysts, of Customer’s license and intended use of the Services, and to permit inclusion of Customer and Customer’s logo on PayFactors customer lists and sales materials. Sections 6, 10-14 and 16 will survive any termination of this Agreement. This Agreement is limited to the terms and conditions contained herein. Any additional or different terms proposed by Customer in any purchase order, quotation, acknowledgment (or other form of agreement) or other document are hereby deemed to be material alterations and notice of objection to them is hereby given. Any such proposed terms shall be void, unless such agreement or other document is signed by an authorized officer of PayFactors and Customer and expressly states that it is amendment to this Agreement. For the avoidance of doubt, if Customer requires PayFactors to use a vendor management system or similar arrangement, Customer and not PayFactors will be responsible for such payment. In the event PayFactors is required to make any payment for such a system, the Annual License Fee charged by PayFactors hereunder shall be automatically increased to include such cost. If Customer hereunder is the U.S. Government or any agency or department thereof, the Government agrees the PayFactors product, and the documentation are licensed hereunder (i) only as a commercial item, and (ii) with only those rights as are granted to all other end users pursuant to the terms and conditions of this Agreement. The Services, PayFactors’ products and all accompanying documentation are COMMERCIAL ITEMS AS DEFINED BY THE FEDERAL ACQUISITION REGULATION. If this Agreement fails to meet the Government’s minimum needs or is inconsistent with Federal procurement law, the Government agrees to notify PayFactors. Use, duplication or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable.