DayCheck Program Merchant Terms and Conditions

Last updated: February 1, 2026

This SpotOn DayCheck Program Employer Terms and Conditions (“Agreement”) is entered into as of the date you first access or use the Services (“Effective Date”). This Agreement forms a legal agreement between you or the entity you represent (“Client”) and SpotOn Flex LLC a Delaware corporation with place of business at 100 California Street, 9th Floor, San Francisco, CA 94111 (“SpotOn”). The Client and SpotOn are hereinafter individually referred to as a “Party,” and together as the “Parties.”

THESE TERMS INCLUDE A DISPUTE RESOLUTION AND ARBITRATION AGREEMENT TERMS, WHICH ARE SET FORTH BELOW, AND A WAIVER OF PURSUING CLAIMS BY CLASS ACTION.

THESE TERMS ARE A LEGAL AGREEMENT BETWEEN YOU AND SPOTON. PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE USING ANY OF SPOTON’S SERVICES. BY USING SPOTON’S SERVICES YOU AGREE TO BE BOUND BY THESE TERMS.

This Agreement supplements other agreements entered into between Client and SpotOn. This Agreement governs your use of the Services, as set forth below.

You and SpotOn agree as follows:

1. 1. Additional Terms and Privacy Policy. Client and SpotOn shall use services provided by Astra, Inc. (“Astra”) during the course of providing the DayCheck Program to Client’s employees (as defined below) for the purposes of processing ACH transfers. By entering into this Agreement, Client also agrees to have received and be bound by the Astra Terms (available at https://astrafi.com/terms/) (“Astra Terms”). The Astra Terms incorporate the Astra Privacy Policy (available at https://astrafi.com/privacy/). In the event of discrepancy between the Astra Terms, the Merchant Terms, and this Agreement, this Agreement shall prevail. Client also acknowledges having received a copy of our Privacy Statement (https://www.spoton.com/legal/merchant-privacy/), which is incorporated herein by reference.
2. 2. Client Application. In order to access the DayCheck Program, Client shall execute and return to SpotOn a merchant application using the form provided by SpotOn. Client represents and warrants that all information supplied to SpotOn in connection with its merchant application or in response to any inquiry by SpotOn, whether provided by Client or a third party, is complete and accurate in all material respects. On an ongoing basis, Client must provide SpotOn with the current address of each of its business locations offices, all “doing business as” (DBA) names used by Client, and a complete description of goods sold and services provided. Client agrees to provide additional information to SpotOn upon SpotOn’s request. Client authorizes SpotOn to conduct checks of background, credit, or banking information, as necessary of Client (including its beneficial owners, such as any person that owns or controls 25% or more of the company’s equity or voting rights, or that exercises managerial control over the company), and agrees that all information obtained under this Agreement may be shared with any other third party necessary in connection with the DayCheck Program. The terms of the merchant application are hereby incorporated by reference. In the event of any inconsistency between the terms of a merchant application or this Agreement, the merchant application shall control unless otherwise expressly stated.
3. 3. Services. Client hereby engages SpotOn to provide the Services. The Services include the means by which SpotOn will provide access to earned tips to Client’s employees (“DayCheck Program” or the “Program”). SpotOn shall provide, and Client shall facilitate, the Services hereunder. The DayCheck Program allows Client’s employees to access their earned but unpaid tips (“Tips”) prior to their scheduled payday (each, an “Earned Tips Transaction” or “ETT”) through use of SpotOn’s proprietary technology, provided in partnership with Astra. Employees who choose to enroll (each, a “Participating Employee”) can receive available ETT via two enrollment paths and several disbursement methods subject to separate terms provided by Spoton to Participating Employees. Fees may apply as described below:
   1. 3.1. Fast and Automatic Enrollment
      1. 3.1.1. Automatic Transfers - Instant Delivery (Fee). When Participating Employee selects this option, SpotOn will deposit their ETT into their bank account every day they have at least $25 in accrued tips. Each time their Tips are delivered via Instant Delivery, SpotOn will deduct a fee of the greater of $0.95 or 1 percent of the ETT amount, up to a maximum of $2.95 per day. If Participating Employee enrolls, SpotOn will process disbursements via this method until they cancel their enrollment.
      2. 3.1.2. Manual Transfers - Instant Delivery (Fee). Each time Participating Employee selects this option, SpotOn will deposit their ETT into their bank account. Each time the Tips are delivered via Instant Delivery, SpotOn will deduct a fee of the greater of $0.95 or 1 percent of the ETT amount, up to a maximum of $2.95 per day. Participating Employee must have at least $25 in accrued ETT to select this option.
      3. 3.1.3. Automatic Transfers - End-of-Pay-Period (Free). At the end of Participating Employees’ pay period, all remaining accrued Tips not otherwise provided via one of the above options, will be automatically transferred to the Participating Employee’s bank account by Participating Employee’s regular payday. There is no fee or minimum transfer amount for this transfer.
   2. 3.2. On Demand Enrollment
      1. 3.2.1. Manual Transfers - 3-day Option (Free). When Participating Employee selects this option, Participating Employee will receive accrued ETTs via a transfer to the Participating Employee’s bank account. Each ETT will include all Tips accrued since the last ETT. To use this option, the Participating Employee must have at least $25 in accrued Tips. Participating Employee can use this option once every three days.
      2. 3.2.2. Manual Transfers - Instant Delivery (Fee). Each time Participating Employee selects this option, SpotOn will deposit their ETT into their bank account. Each time the ETT is delivered via Instant Delivery, SpotOn will deduct a fee of the greater of $0.95 or 1 percent of the ETT amount, up to a maximum of $2.95 per day. Participating Employee must have at least $25 in accrued ETT to select this option.
      3. 3.2.3. Automatic Transfers - End-of-Pay-Period (Free). At the end of Participating Employees’ pay period, all remaining accrued Tips not otherwise provided via one of the above options, will be automatically transferred to the Participating Employee’s bank account by Participating Employee’s regular payday. There is no fee or minimum transfer amount for this transfer.
   3. 3.3. SpotOn Debit Card.SpotOn may invite Participating Employees to apply for a SpotOn-branded prepaid card issued by Sutton Bank, member FDIC (“Card”). Participating Employees must apply for and receive a Card. Participating Employees who have a Card can receive an ETT instantly to their Card, subject to their agreement to the terms provided by Sutton Bank. SpotOn will not charge a fee for receipt of an ETT into the Card.

Client acknowledges and agrees that SpotOn or Sutton Bank may charge certain fees to Participating Employees in connection with Participating Employees’ use of the Card and the DayCheck Program pursuant to separate terms provided by Sutton Bank and SpotOn. Subject to applicable law, Client acknowledges and agrees that SpotOn is not a payroll provider or a lender, that SpotOn will not perform payroll deductions or provide pay stubs, and that SpotOn will not collect or remit employment or other taxes on behalf of Client or Participating Employees. The Employee Services may be delayed or suspended if SpotOn, Astra, or Sutton Bank suspects fraud, illegal conduct, or other misuse of the Service. Client is solely responsible for fraud, illegal conduct, or other misuse of the Services by Client’s Employees and Agents who access or input data used by the Services. SpotOn will have no liability if such conduct results in an overpayment or incorrect payment.

Client further acknowledges and agrees that SpotOn’s use of the term “tips” is for programmatic or descriptive purposes only and does not constitute, imply, or confer any determination that amounts paid through the Program are tips or gratuities under applicable federal, state, or local law. Client and Participating Employee are solely responsible for determining the proper legal characterization of all such amounts and for paying any payroll, withholding, or other taxes imposed on tips, wages, or other compensation, regardless of how such amounts are labeled or described by SpotOn.

4. 4. Maximum Amounts. Client or SpotOn may elect to set a maximum or minimum amount of ETT available to Participating Employees per day, week, or other time period. When a maximum is met, Client agrees to disburse accrued Tips via other means. SpotOn may impose different maximums for operational reasons or if it suspects fraud or SpotOn is unable to debit funds from any Employee or Client.
5. 5. Client Errors. If data provided by Client results in an overpayment or incorrect payment, Client acknowledges and agrees that SpotOn is not able to correct that overpayment or incorrect payment except that if there is an underpayment, SpotOn can increase the ETT amount available to Participating Employee via a subsequent transfer. SpotOn is unable to debit or reclaim funds from any Participating Employee. Client shall indemnify and hold SpotOn harmless for any such underpayments, overpayments, or incorrect payments.
6. 6. Authority. The person signing this Agreement on behalf of each Party is binding the entire company and acknowledges that he or she has the authority to do so. SpotOn may conduct due diligence on Client to confirm this authority, and to comply with applicable law and SpotOn’s internal policies.
7. 7. Eligibility. Client shall identify to SpotOn those of its employees who Client deems eligible to participate in the Program(s); such employees are“Eligible Employees.” SpotOn shall not select the Eligible Employees or be liable for Client’s selections except that SpotOn may prohibit individual employees who have previously violated SpotOn’s consumer Terms and Conditions from further enrollment in the Program. Eligible Employees who elect to participate in the Program are Participating Employees.
8. 8. Data Requirements.
   1. 8.1. Eligible Employee Data. Client shall provide SpotOn with the specific data elements in the specified format sufficient to enable SpotOn to offer the Services to Eligible Employees as requested by SpotOn at the time of enrollment or otherwise during the term of this Agreement (“Eligible Employee Data”). Notwithstanding anything contrary in the applicable Statement of Work Client shall provide the following Eligible Employee Data to SpotOn: name, contact information, location, compensation information, other employment related information, and any other information that SpotOn requests for the purposes of offering its services to Eligible Employees. Client represents: (i) it has the right to provide SpotOn with Eligible Employee Data, which may include personal information (as that term is defined by applicable privacy law, hereafter “Personal Information”), that Client provides SpotOn, and (ii) Client has obtained any consents and provided all notices as may be required by applicable law to enable SpotOn to use Eligible Employee Data pursuant to this Agreement and any applicable Statement of Work.

      SpotOn shall not: (i) Sell or Share (as those terms are defined under applicable privacy laws) Personal Information related to Eligible Employees; (ii) retain, use or disclose Eligible Employee data for any purpose other than for the business purposes specified in this Agreement or as permitted by applicable law; (iii) retain, use or disclose Eligible Employee data outside the of the direct business relationship between SpotOn and Client; and (iv) combine Personal Information related to Eligible Employees with Personal Information that SpotOn receives from its other clients or through SpotOn’s own interactions with Eligible Employees. Without limiting the foregoing, Client acknowledges and agrees that aggregate, anonymized and de-identified data (together, “Deidentified Data”) is no longer Personal Information under applicable privacy laws. SpotOn may use Deidentified Data derived from Eligible Employee data for SpotOn’s business purposes, including, without limitation, to perform research, develop analytics, improve operations and enhance the features, functions and performance of the services. SpotOn shall not re-identify or attempt to re-identify Deidentified Data except for as permitted by law. All Deidentified Data shall be owned solely and exclusively by SpotOn.

      If any Eligible Employee Data provided pursuant to this Section 7.1 is found to be incorrect or missing, Client shall use best efforts to correct the information as soon as reasonably possible.

      At the termination of the Agreement, SpotOn shall, upon Client’s written request, delete or permanently anonymize all Eligible Employee data unless prohibited from doing so under applicable law.

   2. 8.2. Participating Employee Data. Where SpotOn has obtained consent pursuant to Section 7, it processes data of all Participating Employees (“Participating Employees Data”) pursuant in its capacity as a “Business” or “Data Controller” as those terms are defined under applicable privacy laws. SpotOn shall maintain and process all Participating Employee Data pursuant to its Privacy Policy which it shall make available to all Participating Employees.

      On a regular and recurring basis, Client shall provide time and attendance information for SpotOn to determine hours worked and/or gross wages earned by Participating Employees. Each Party shall comply with all applicable privacy laws in its capacity as an independent “Business” or “Data Controller” of Participating Employee Data, as applicable. In the event that a Participating Employee requests to exercise his or her privacy rights under applicable privacy laws, each Party shall provide reasonable assistance and cooperate with the other in fulfilling the Participating Employee’s privacy rights request, as required by law.

   3. 8.3. Data Transfer and Security Requirements. Client may comply with the provisions of this Section 7.3 through use of an API that gives SpotOn access to Client’s Participating Employee Data, or by providing another means mutually agreed between the Parties. Any data or information obtained from either Party pursuant to this Agreement shall be kept confidential and encrypted at rest and in transit. Client shall implement technical and organizational measures to ensure that Client’s use of the SpotOn Dashboard or API, if provided, does not lead to the unauthorized access, use or disclosure of data. Such technical and organizational measures shall include, but not be limited to: (i) the use of encryption technologies, and restricting privileged access to encryption keys to authorized users with a business need; (ii) the establishment of access control procedures for adding, modifying, and /or removing users; (iii) unique network system authentication enforced; (iv) remote access encryption enforced so only authorized employees via an approved encrypted connection may access SpotOn systems remotely; (v) network firewalls utilized and configured to prevent unauthorized access; and (vi) physical access processes established for all facilities where SpotOn systems are able to be accessed from. Client shall immediately notify SpotOn of any unauthorized use of the Services or any known or suspected breach of security related to the SpotOn Dashboard or API. Without limiting SpotOn’s other rights and remedies under this Agreement, Client shall reimburse SpotOn for all reasonable costs associated with any loss of or damage to data or breach of security caused by Client’s, or Client’s employees’, contractors’, or service providers’, acts, omissions or failure to secure SpotOn systems in accordance with this Section 7.3.

      SpotOn represents and warrants that employee information obtained pursuant to this Agreement shall be maintained in a manner consistent with its Information Security Management System, which shall rely on ISO27001 fundamentals and SOC I & II reporting, or equivalent updated industry standard. SpotOn shall notify Client without undue delay of any actual breach of security involving Eligible Employee Data. SpotOn shall provide Client with timely information about the breach of security, including the nature and consequences of the breach of security, the measures taken or proposed by SpotOn to mitigate or contain the breach of security, the status of SpotOn’s investigation, a contact point from which additional information may be obtained, and the categories and approximate number of data records concerned. Communications with Client in connection with a breach of security are not an acknowledgment by SpotOn of any fault or liability with respect to the breach of security.

9. 9. Employee Consent. SpotOn shall obtain the Participating Employee’s express consent (via online means) in writing that will permit Client to deduct a portion of the proceeds of that Participating Employee’s wages in an amount equal to the ETT selected by the Participating Employee, plus any applicable fees, from the Participating Employee’s next regularly scheduled wage payment(s).
10. 10. Client Payments and ACH Debits. By agreeing to these Terms and the Astra ACH Authorization, Client agrees Astra (including its affiliates or subsidiaries) is authorized to initiate an ACH debit from the account(s) provided by Client for use in connection with this Service for all amounts due to SpotOn under this Agreement. This authorization allows Astra to debit amounts equal to all (i) DayCheck Program Fees and (ii) all amounts transferred under this Agreement pursuant to the Program to Participating Employees. Such authorization will remain in full force and effect, including after termination of this Agreement, until all amounts owed to SpotOn have been paid, or until Client expressly withdraws or cancels such authorization with written notice to SpotOn. Client acknowledges and agrees that it will abide by the rules and guidelines of the National Automated Clearinghouse Association (“NACHA”) and that any ACH debits provided hereunder will be governed by the same. Client must object to any error reflected in any invoice issued or Client payment within thirty (30) days of the invoice date or Client payment date, respectively. If Client fails to object to such error within such thirty (30) day period, any claims for such purported error shall be deemed waived.

    If an ACH fails, Astra has the right to retry a failed ACH as often as permitted under the law and applicable NACHA rules. In the event the ACH fails or the authorization is canceled or revoked, Client shall remit all amounts due to SpotOn within 24 hours of the failed ACH directly to SpotOn. Client acknowledges and agrees that failure to timely remit such funds is an immediate breach of this Agreement. Client also acknowledges and agrees that SpotOn may debit funds owed to SpotOn through any available payment method provided by Client, including but not limited to payment cards Client has on file with SpotOn. SpotOn reserves all legal and equitable remedies available to it to allow SpotOn to recoup funds owed to it by Client including the right to impose late or penalty fees on any late or failed payment of up to $15. Client agrees to maintain an accurate ACH Authorization at all times. Failure to do so, including failure to provide updated authorizations as necessary, is a breach of this Agreement.

11. 11. Client Representations (see section 19 for additional representations).
    1. 11.1. Client warrants that at all times relevant to this Agreement it is an employer of record of the Eligible and Participating Employees.
    2. 11.2. Client represents that it pays its employees in arrears, and agrees to timely process such authorized deductions and promptly remit such amounts, in addition to any fees subsidized by Client, to SpotOn as set forth in Section 3.
    3. 11.3. Client represents and warrants that all data provided to SpotOn by Client (including its agents and employees) is accurate.
12. 12. Deduction and File Process. SpotOn shall provide Client with a periodic record of each Participating Employee’s settlement amount to be deducted (“Deduction File”). Client shall denote the deduction for SpotOn transactions on each paystub in any pay period during which a deduction is made, and agrees not to characterize or name such deductions as an advance, a loan repayment, wage assignment, or credit transaction unless specifically instructed by SpotOn to do so.
    1. 12.1. Client shall be liable to SpotOn for any amounts Client is unable to deduct from Participating Employee’s payroll due to a shortage of available wages due to the Participating Employee. Client acknowledges and agrees that is expressly prohibited from attempting to recoup these funds from the Participating Employees during subsequent pay periods.
    2. 12.2. Client shall be liable to SpotOn for any amounts SpotOn is unable to recoup from Participating Employees as a result of Client’s failure to process deductions in accordance with this Section 11 or any errors in data provided by Client or its agents and employees to SpotOn.
    3. 12.3. Employee Terminations and Between-Cycle Paychecks. Client shall give SpotOn access to a real-time listing of any terminations of Eligible Employees in order to disable such employee’s access to the DayCheck Program. Client shall reimburse SpotOn for the amount of any transactions SpotOn is unable to process due to employee termination not communicated to SpotOn in accordance with this provision.
    4. 12.4. Unscheduled Paychecks. If Client issued a paycheck to a Participating Employee prior to that employee’s regularly scheduled payday, Client shall determine whether the affected employee has received any DayCheck payments or paid any applicable fees that Client has not remitted to SpotOn. Client shall deduct those amounts from the unscheduled paycheck and remit those funds to SpotOn in the manner provided in Section 10 above.
13. 13. Multiple Locations; Franchisees. Client must list on the merchant application (a) all locations at which Client wishes to use Services (each, a “Location”); and (b) all other entities that will access Services on behalf of Client or under Client’s account, including any affiliates of Client or, if Client is a franchisor, any of Client’s franchisees. For the purpose of this Agreement, where Locations are operated by an affiliate or franchisee, use of Services by those affiliates and franchisee identified on the applicable merchant application shall be deemed Client’s internal business use. If Client registers more than one Location to use Services, whether or not such Location is owned by Client, or is a franchisee or other licensee of Client, Client represents and warrants that it has the authority to commit such Location to the terms of this Agreement and if required by SpotOn, will cause such Location to enter into a joinder to this Agreement. Client will be responsible for either fulfilling the responsibilities or for arranging such Location to fulfill the responsibilities set forth in this Agreement, including payment obligations described in Section 9. Client acknowledges and agrees that it will be fully liable for all acts and omissions of its affiliates, franchisees, and other representatives as Client’s own acts and omissions, and Client will indemnify and hold SpotOn harmless from and against any claims or losses caused by Client’s affiliates, franchisees, and representatives.
14. 14. Employee Adoption and Promotion by Client and SpotOn. Client agrees that SpotOn may convey Program details to Eligible Employees and agrees to work with SpotOn in good faith to inform and educate Eligible Employees about the DayCheck Program, including through distribution of materials in hard or electronic copy, or via email and text where available. SpotOn may list Client on its client list and describe the Services performed for Client.
15. 15. Proprietary Rights.
    1. 15.1. Client’s Proprietary Rights. Client grants to SpotOn a non-exclusive, royalty-free right and license to use Client’s trademarks, data, and other materials it provides to SpotOn (collectively, “Client Materials”) for the purposes of providing the Services. Such license includes, but is not limited to, displaying Client’s name, logo, and other trademarks in connection with offering the Services. Client retains all rights in and to its trademarks and copyrights. Client has sole responsibility for all Client Materials, and Client represents and warrants that it is the rightful owner or licensee of such Client Materials and that the Client Materials and SpotOn’s use of the Client Materials in accordance with this Contract will not violate any right of privacy, personal or proprietary right, or other common law or statutory right of any third party.
    2. 15.2. SpotOn’s Proprietary Rights. SpotOn has developed or acquired proprietary software and systems through which it delivers the Services, including the Dashboard and SpotOn’s internal tools (collectively, the“SpotOn Software”). SpotOn grants Client a license to access, via the internet, the SpotOn Software applicable to the Services selected by Client during the Term of this Contract, but only for the internal use of Client and subject to the other terms and conditions of this Contract. SpotOn has developed trademarks, copyrighted material, and other intellectual property that it may use in conjunction with the Services, on websites, and apps related to the Services, and/or with Hardware; or that SpotOn may otherwise use on behalf of Client or in conjunction with making the Services available for use by Client or its employees. All (i) SpotOn Software, (ii) any Dashboard, (iii) any SpotOn website or mobile app, and (iv) all other software, dashboards, databases, tools, websites, mobile apps, portals, technology and systems used or offered by SpotOn in conjunction with the Services are collectively referred to as “SpotOn Technology.” All SpotOn Technology and all trademarks and other materials used by SpotOn in the Services (other than those owned by Client or third parties), are owned by SpotOn or its licensors.
    3. 15.3. Third Party Proprietary Rights. The Services may involve interaction with proprietary and/or branded websites, apps, or other technology of third parties, each of which retains all rights in and to its trademarks, tradenames, copyrights, and SpotOn Technology (collectively, “Proprietary Materials”). Client has no right to use any Proprietary Materials of any third parties.
16. 16. License. Subject to the terms and conditions of this Agreement, during the Term (as defined below), SpotOn hereby grants to Client a limited, non-exclusive, non-transferable, non-sublicensable (except as set forth herein) license to (a) access and use the Services and any related technologies for the sole purpose of providing Client’s employees with access to the DayCheck Program, and (b) access and use the SpotOn API, if provided, for the limited purpose of accessing and using the Services as provided herein. The license granted herein also includes the right to make, distribute and use a reasonable number of copies of SpotOn’s marketing materials for Client’s internal business purposes and to promote the Services to Client’s employees.
17. 17. Changes. SpotOn may change, modify or discontinue any element of the Services upon thirty (30) days prior written notice to Client, unless a lesser notice period is required by applicable laws, rules or regulations or in order to address a material security vulnerability. SpotOn reserves the right, when permitted by applicable law, to provide no notice to Client or its employees of any other changes to the Services. SpotOn may also make new features or modules for the Services available for an additional fee (each such offering, an “Add-On”).
18. 18. Proprietary Rights. SpotOn shall at all times retain all right, title and interest in and to all intellectual property rights contained in the Services, the DayCheck Program, SpotOn's marketing materials and SpotOn trademarks. SPOTON EXPRESSLY RESERVES ALL RIGHTS IN AND TO ITS TECHNOLOGY, DOCUMENTATION, MARKETING MATERIALS AND SPOTON TRADEMARKS NOT EXPRESSLY GRANTED HEREUNDER.
19. 19. Confidential Information. In performance of this Agreement each Party may be exposed to confidential or proprietary information of the other Party (“Confidential Information”), whether written, oral, or visual, and whether or not expressly marked confidential. However, Confidential Information will not include information that (a) is or becomes publicly available through no act or omission of the receiving Party; (b) was in the receiving Party’s lawful possession prior to the disclosure and had not been obtained by the receiving Party either directly or indirectly from the disclosing Party; or (c) is lawfully disclosed to the receiving Party by a third party without restriction on disclosure. Client acknowledges and agrees that SpotOn’s Confidential Information includes all technical, design, and benchmark information relating to Services and all software code relating to Services. Each Party agrees that it will not disclose the other Party’s Confidential Information to third parties without prior written consent, and that it will protect the other Party’s Confidential Information from unauthorized use with the same degree of care that it uses to protect its own non-public and confidential information, but in no event less than a reasonable amount of care. Each Party agrees that the other Party’s Confidential Information may be used only to directly further the purposes of this Agreement, and will be disclosed only to employees and contractors with a need to know the Confidential Information for the purposes of this Agreement. Each Party will take all reasonable steps to protect the disclosing Party’s Confidential Information from unauthorized copying or use by its employees and others, and to immediately notify the disclosing Party if it becomes aware of such unauthorized copying or use. Each Party will remain responsible for the handling of Confidential Information by its employees, contractors, and representatives, and any other person to whom such Party discloses such Confidential Information. Nothing in this Agreement will prevent the receiving Party from disclosing Confidential Information to the extent it is required to be disclosed by law or valid order of a court or other governmental authority, provided, however, that the receiving Party shall first give written notice to the disclosing Party (to the extent legally permitted) and shall cooperate with any efforts by the disclosing Party to challenge or limit the compelled disclosure, at the disclosing Party’s request and expense. Each Party as the receiving Party agrees that any breach or threatened breach of the confidentiality obligations of this Agreement is likely to result in irreparable injury to the disclosing Party which may not be able to be remedied by money damages. Accordingly, in the event of a breach or threatened breach of such confidentiality obligations, the disclosing Party shall be entitled to injunctive or other equitable relief, in addition to any other remedies that may be available to it at law, in equity, or under this Agreement.
20. 20. Government Notices. In the event Client receives a communication from a governmental authority regarding the Services or the DayCheck Program: (i) Client shall promptly, and in no event later than 48 hours, notify SpotOn; (ii) SpotOn shall commence a review of the communication and create a response to the communication and/or arrange a conference with the governmental authority from which such communication was received, subject to Client’s ongoing cooperation; and, (iii) SpotOn shall design and execute an action plan in response to the communication and/or as a result of communications or discussions with the governmental authority and provide Client with ongoing status reports in connection with the same, which such action plan may include, if commercially reasonable, modifications to the Program.
21. 21. Term and Termination.
    1. 21.1. Term The term of this Agreement shall commence on the Effective Date and continue for one calendar year or until terminated in accordance with the following provisions (the “Term”). This Agreement shall automatically renew on a yearly basis until terminated in accordance with this section.
    2. 21.2. Termination for Cause. Either Party may terminate for cause in the event the other Party commits a material breach of this Agreement, provided that the breaching Party fails to cure the breach within thirty (30) days of receiving written notice of the breach and the non-breaching Party’s intent to terminate.
    3. 21.3. Termination for Convenience. Either Party, by notifying the other Party in writing, may terminate the Agreement upon thirty (30) days prior written notice.
    4. 21.4. Effect of Termination. Upon termination of this Agreement for any reason, and notwithstanding expiration of the Term: (a) SpotOn shall be entitled to any undisputed, outstanding payments and disbursement fees schedule for remittance to SpotOn from Client pursuant to this Agreement, including any sums due under Section 9; (b) Client’s and each employee’s right to access and use Services or the DayCheck Program may be terminated; and (c) SpotOn shall have no further obligation to provide any Services to Client, or to offer the DayCheck Program to Client’s employees. These rights and obligations shall survive the expiration or termination of this Agreement.
    5. 21.5. Suspension or Termination by SpotOn. Without limitation of any other rights or remedies, SpotOn reserves the right to suspend or restrict Client’s or any Eligible Employee’s access to the DayCheck Program, if: (a) SpotOn reasonably believes that Client or any employee has violated this Agreement or the Program Terms and Conditions; (b) Client or any employee fails to cooperate with a reasonable investigation by SpotOn of any suspected violation of this Agreement or the Program Terms and Conditions; (c) there is a denial of service attack on SpotOn’s servers or systems, a security breach or a similar event, and SpotOn reasonably believes that suspension of Client’s or any employee’s access is reasonably necessary to protect systems, information or data; (d) SpotOn receives an order or directive from any law enforcement agency, regulatory body or other authority claiming jurisdiction over SpotOn; or, (e) Client applies for or consents to the appointment of a receiver, trustee or liquidator for substantially all of its assets (or such a receiver, trustee or liquidator is appointed), or Client has filed (involuntary or voluntary) for bankruptcy, becomes or is insolvent or bankrupt, admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors (all events of which Client must inform SpotOn as soon as possible but no later than 5 days after the occurrence).
22. 22. Rights after Termination; Survival. Termination of this Agreement shall not affect the rights and obligations of the Parties that have accrued prior to the date of termination.
23. 23. Mutual Representations and Warranties. Each Party hereby represents and warrants to the other Party that: (a) it is a corporation or organization duly organized and validly existing under the laws of the jurisdiction in which it was incorporated or organized; (b) it has all requisite corporate power and authority to execute and deliver this Agreement and perform its obligations under this Agreement; and (c) it will comply with all applicable federal and state laws in connection with this Agreement.
24. 24. Force Majeure. In the event that either Party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (except payment obligations) due to any cause beyond its reasonable control, the affected Party shall give written notice thereof to the other Party and its performance shall be extended for the period of delay or inability to perform due to such occurrence.
25. 25. Client Representations and Warranties. Client represents and warrants that it has and shall have all rights necessary to provide the information described herein to SpotOn and grants SpotOn any rights and licenses necessary to SpotOn under this Agreement. Client further represents that any administrators with access to Participating Employee and Program information are authorized to have such access and review Participating Employee information. Client further represents and warrants that it is solely responsible for wage and hour compliance for Eligible and Participating Employees, and will ensure compliance with regulations pertaining to, without limitation, the appropriate classification of Participating Employees as exempt or non-exempt, the accuracy and completeness of Participating Employees’ paystubs, time records, wage payment timing, and the provision of legally-mandated rest and meal breaks and overtime compensation. During the Term of this Agreement. Client further represents and warrants the accuracy of all data provided to SpotOn. Client further represents and warrants that Client will use Services only for Client’s business and will comply with all applicable laws and regulations, the terms of the published polices and programs of both SpotOn and Client.
26. 26. No Assurance of Availability of Services. Client understands and agrees that Services may be unavailable from time to time for maintenance or other reasons, and that SpotOn is not responsible for any error, omission or interruption in Services, including any defect or delay in operation or transmission; communications failure; deletion, theft, destruction, or unauthorized access to or alteration of any content, (i) that SpotOn sends through Services, (ii) that Client collects, processes, stores, or sends through use of Services, or (iii) that Client attempts to so collect, process, store, or send; or for any technical malfunction or other difficulty Client or Client’s employees may experience in the use of Services.
27. 27. Disclaimer. EXCEPT FOR SPOTON’S EXPRESS WARRANTIES AS SET FORTH HEREIN, SPOTON MAKES NO AND HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY. SPOTON DOES NOT REPRESENT OR WARRANT THAT ACCESS TO THE SERVICES SHALL BE UNINTERRUPTED OR ERROR- FREE. IF ANY CONTENT STORED ON A SPOTON SYSTEM IS DAMAGED, CORRUPTED, LOST OR DELETED, FOR ANY REASON, SPOTON SHALL HAVE NO OBLIGATION OR LIABILITY TO CLIENT OR ANY OTHER PERSON, EXCEPT TO USE COMMERCIALLY REASONABLE EFFORTS TO ATTEMPT TO RECOVER SUCH CONTENT. SPOTON FURTHER DISCLAIMS ALL RESPONSIBILITY FOR ENSURING WAGE AND HOUR COMPLIANCE FOR PARTICIPATING EMPLOYEES, INCLUDING WITHOUT LIMITATION COMPLIANCE PERTAINING TO PARTICIPATING EMPLOYEES’ CLASSIFICATION AS EXEMPT OR NON-EXEMPT AND PARTICIPATING EMPLOYEES’ TIME RECORDS, WAGE PAYMENT TIMING, THE PROVISION OF MEAL AND REST BREAKS AND OVERTIME PAY, AND THE ACCURACY OF PARTICIPATING EMPLOYEE’S PAYSTUBS.
28. 28. Limitation of Liability/Consequential Damages Waiver. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE DAMAGES, LOSS OF PROFITS OR BUSINESS OPPORTUNITIES OR SAVINGS, OR ANY OTHER NON-CONTRACTUAL DAMAGES. EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS OR PAYMENT OBLIGATIONS HEREUNDER, EACH PARTY’S TOTAL CUMULATIVE LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT WILL BE LIMITED TO THE TOTAL AMOUNT OF FEES PAID OR OWED TO SPOTON BY CLIENT UNDER THIS AGREEMENT DURING THE MOST RECENT TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY. THIS SECTION WILL SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT. THE FOREGOING EXCLUSIONS AND LIMITATIONS OF LIABILITY APPLY EVEN IF SPOTON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND LIABILITIES.
29. 29. Basis of the Bargain. Client agrees that without the limitations of liability, exclusions of damages, releases, and waivers contained in this Agreement it would not be feasible for SpotOn to offer Services at the rates offered by SpotOn, that such limitations of liability, exclusions of damages, releases, and waivers are fundamental elements of the basis of the bargain between Client and SpotOn pursuant to which all of the foregoing is being offered. Client also agrees that the foregoing would not be made available to Client if Client did not agree to such limitations, exclusions, releases, and waivers.
30. 30. Arbitration Agreement.

    PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

    1. 30.1. Contact SpotOn First. If a dispute arises between Client and SpotOn, SpotOn’s goal is to learn about and address Client’s concerns and, if SpotOn is unable to do so to Client’s satisfaction, to provide Client with a neutral and cost effective means of resolving the dispute quickly. Disputes between Client and SpotOn may be reported to SpotOn’s customer service at Support@SpotOn.com or by calling SpotOn’s customer service representative at 877-814-4102 between 9 a.m. – 5 p.m. Pacific time weekdays (other than holidays). The communication must be on an individual basis and provide, at minimum, the following information: Client’s name; a description of the nature or basis of the claim or dispute; and the specific relief sought. If any dispute is not resolved by such good faith negotiations, the dispute shall be resolved through binding arbitration unless Client has otherwise opted out of the Arbitration Agreement (as defined below). The term “dispute” means any dispute, action, claim, or other controversy between Client and SpotOn, whether in contract, warranty, tort, statute, regulation, ordinance, or any other legal or equitable basis. “Dispute” will be given the broadest possible meaning allowable under applicable law. For any dispute initiated by SpotOn, SpotOn will send its description of the dispute to the email address associated with Client’s SpotOn account.
    2. 30.2. Dispute Resolution and Arbitration Agreement. If any dispute is not resolved by negotiation as described in Section 31.1 within thirty (30) days (or other such time period agreed to by the Parties in writing) of notification of such dispute to the other Party, such dispute shall be resolved through binding arbitration unless Client opts out of the Arbitration Agreement using the process explained below. Client understands and agrees that it is waiving its right to sue or go to court to assert or defend its rights. Client and SpotOn agree that all claims, disputes, or disagreements that may arise out of the interpretation or performance of this Agreement, or that in any way relate to the provision or use of Services, Client’s relationship with SpotOn, or any other dispute with SpotOn, shall be resolved exclusively through binding arbitration in accordance with this Section 29 (“Arbitration Agreement”). The Federal Arbitration Act shall exclusively govern the interpretation and enforcement of the Arbitration Agreement. Except as set forth in Section 31.4 below, if any provision of the Arbitration Agreement is found by an arbitrator or court of competent jurisdiction to be invalid, the Parties nevertheless agree that the arbitrator or court should endeavor to give effect to the Parties’ intentions as reflected in the provision, and the other provisions thereof remain in full force and effect.
    3. 30.3. Right to Opt Out of Arbitration Agreement. Client may opt out of the Arbitration Agreement within the first thirty (30) days after Client accesses or uses Services. Client may also opt out of the Arbitration Agreement within thirty (30) days after SpotOn notifies Client regarding a material change to the Arbitration Agreement. Client may opt out by sending an email to arbitration@SpotOn.com or by sending a letter to 100 California St, 9th Floor, San Francisco, CA 94111, Attn: Legal Counsel. Client should include Client’s name, mailing address, and the words “Reject Arbitration.”
    4. 30.4. Waiver of Right to Jury Trial; Waiver of Right to Bring Class Action and Representative Claims.
       All arbitrations shall proceed on an individual basis. The arbitrator is empowered to resolve the dispute with the same remedies available in court, including public injunctive relief. The Parties understand that, absent the Arbitration Agreement, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation. CLIENT AND SPOTON HEREBY ACKNOWLEDGE AND AGREE THAT THEY EACH WAIVE THE RIGHT TO TRIAL BY JURY IN ANY MATTER UNDER, RELATED TO, OR ARISING OUT OF THE AGREEMENT, ANY SERVICES, ANY TRANSACTIONS IN CONNECTION WITH SERVICES, OR ANY RELATIONSHIPS CONTEMPLATED UNDER THE AGREEMENT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IN ADDITION, CLIENT AND SPOTON ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (1) ARBITRATION WILL BE CONDUCTED IN AN INDIVIDUAL CAPACITY ONLY AND NOT AS A CLASS OR OTHER CONSOLIDATED ACTION, INCLUDING BUT NOT LIMITED TO CLASS ACTION LAWSUITS, CLASS-WIDE ARBITRATIONS, PRIVATE ATTORNEY GENERAL ACTIONS, JOINT OR CONSOLIDATED LAWSUIT OR JOINT OR CONSOLIDATED ARBITRATION, AND ANY OTHER PROCEEDING WHERE SOMEONE ACTS IN A REPRESENTATIVE CAPACITY; (2) THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO RESOLVE THE INDIVIDUAL PARTY’S CLAIM.

       If there is a final judicial determination that applicable law precludes enforcement of this Section’s limitations as to a particular remedy, then that remedy (and only that remedy) must be severed from the arbitration and may be sought in court. The Parties agree, however, that any adjudication of remedies not subject to arbitration shall be stayed pending the outcome of any arbitrable claims and remedies.

       If a court decides that the limitations of this particular paragraph regarding class action waiver are deemed invalid or unenforceable, any putative class, private attorney general, or representative action must be brought in a court of proper jurisdiction and not in arbitration.

    5. 30.5. How Arbitration Works. Either Client or SpotOn may initiate such arbitration by notifying the other party and the alternative dispute resolution provider (“ADR Provider”) that Client or SpotOn wishes to initiate a binding arbitration proceeding. Such ADR Provider shall be the American Arbitration Association (“AAA”) unless otherwise mutually agreed by the Parties. The arbitrator shall apply California law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized at law. The arbitration shall be held at a location in Chicago, Illinois determined by the ADR Provider, or at such other location as may be mutually agreed upon by Client and SpotOn. In connection with any arbitration proceeding hereunder, the rules of discovery, procedure and evidence of the applicable governing state law will apply and supersede the rules and procedures of AAA unless the Parties mutually agree otherwise. The arbitration will be before a single arbitrator appointed by mutual agreement of the Parties, unless the Parties agree otherwise. During the arbitration proceeding, the claimant shall pay the initial case management fee upon filing and the Parties shall each pay their respective share of the AAA fees and expenses as they are periodically billed by AAA. The prevailing Party, as determined by the arbitrator, shall be entitled to recover all of its portion of the paid fees as well as reimbursement of its reasonable attorneys’ fees from the non-prevailing Party. Any judgment on an arbitration award rendered by the arbitrator (whether non-appearance-based or appearance-based) may be entered in any court of competent jurisdiction.
    6. 30.6. Law and Forum for Disputes. This Agreement shall be governed in all respects, including validity, interpretation, and effect, by the internal laws of the State of California, without regard to any conflicts of laws rules. Exclusive jurisdiction over any claim for injunctive or other equitable relief arising out of or related to the Agreement or to enforce a binding arbitration award, shall be in the state or federal courts located in Chicago, Illinois. Client hereby irrevocably submits to the personal jurisdiction of the courts located within Chicago, Illinois for the purpose of litigating all such claims or disputes, including for enforcing an arbitration award, agrees to venue in such courts and will not allege forum non-conveniens or otherwise seek to bring or move any such action in or to any other location.
    7. 30.7. Improperly Filed Litigation. All claims Client brings against SpotOn must be resolved in accordance with this Section 30. All claims filed or brought by Client contrary to this Section 30 shall be considered improperly filed and a breach of this Agreement. Should Client file a claim contrary to Section 30, SpotOn may recover attorneys’ fees and costs up to $1,000, provided that SpotOn has notified Client in writing of the improperly filed claim and Client has failed to promptly withdraw the claim.
    8. 30.8. Arbitration Amendment. SpotOn will provide Client with thirty (30) days’ prior notice of any material changes to the Arbitration Agreement (“Arbitration Amendment”). Client’s continued use of the Services thirty (30) days after receiving such notice will constitute Client’s acceptance of, and agreement to, the Arbitration Amendment. If Client does not agree to such Arbitration Amendment, Client may opt out of the Arbitration Amendment in accordance with Section 31.3 or otherwise terminate this Agreement in accordance with Section 22.
31. 31. Indemnification.
    1. 31.1. Mutual Indemnity Rights. Each Party shall defend, indemnify and hold harmless the other Party from and against any and all third-party losses, damages, liabilities, and expenses, including reasonable attorneys’ fees (collectively, the “Claims”), it incurs to the extent directly caused by: (i) the other Party’s breach of this agreement, or (ii) the other Party’s (including its directors, officers, agents or employees) gross negligence, fraud or willful misconduct.
    2. 31.2. SpotOn’s Indemnity Obligations. SpotOn shall defend, indemnify and hold harmless Client from and against (i) loss or compromise of Client or employee data privacy or security caused by SpotOn, (ii) Claims made against Client due to the normal operation of SpotOn’s Programs in accordance with this Agreement, or (iii) Claims made against Client alleging that Client’s or a Participating Employee’s authorized use of the Services infringes or misappropriates the third party’s intellectual property rights.
    3. 31.3. Client’s Indemnity Obligations. Client shall defend, indemnify and hold harmless SpotOn from and against Claims made against SpotOn due to Client’s alleged violation of employment, labor, wage and hour, or workplace harassment laws not due to the normal operation of the Services and the Program in accordance with this Agreement or any Claims related to errors in data provided by Client to SpotOn.
    4. 31.4.The Parties indemnified hereunder shall include the relevant Party’s parent, subsidiaries, affiliates, shareholders, and successors, and the managers, officers, directors, employees, and agents of each.
    5. 31.5. Procedure. The indemnified Party shall give prompt notice of any indemnified claim to the indemnifying Party, shall give the indemnifying party the opportunity to defend, compromise, or settle such claim with counsel selected by such indemnifying Party, and shall reasonably cooperate in the course thereof. The indemnifying Party shall not enter into any compromise or settlement of any claim hereunder on the part of the indemnified Party without the indemnified Party’s prior written consent, which shall not be unreasonably withheld or delayed. The indemnified Party may participate in its defense with counsel of its own choosing and at its sole expense.
32. 32. Additional Terms.
    1. 32.1. SpotOn’s Intellectual Property. SpotOn owns all rights in and to the Program, including but not limited to all intellectual property related to the Program, the SpotOn mobile application, and SpotOn’s related software. SpotOn grants to Client and Participating Employees a non-sublicensable, non-exclusive, non-transferrable, limited license to use the software in connection with the Services and in accordance with the law and any applicable terms and conditions. If Client gives SpotOn feedback regarding improvement or operation of the Program(s) (together, “Feedback”), SpotOn may use the Feedback without restriction or obligation. SpotOn reserves all rights not expressly granted herein.
    2. 32.2. Trademarks. During the Term, SpotOn hereby grants to Client a non-exclusive, limited license to use SpotOn’s trademarks solely in connection with activities authorized by this Agreement. Client shall only use the trademarks in the form and manner specified by SpotOn. The use by Client of the SpotOn trademarks in connection with this Agreement shall not create any right, title or interest, in or to the SpotOn trademarks in favor of Client and all goodwill associated with the use of the SpotOn trademarks shall inure to the benefit of SpotOn.
    3. 32.3. Relationship. Nothing in this Agreement shall be deemed to create an employment, partnership or joint venture relationship between the Parties. SpotOn shall set its own work schedule to perform its obligations under this Agreement and shall be responsible for the manner in which they are performed. The Parties shall perform their respective obligations in a professional manner with employees having a level of skill commensurate with the obligations to be performed. SpotOn is an independent contractor and shall provide its own materials, equipment, office space and other business items necessary to perform the obligations of this Agreement.
    4. 32.4. Marketing. SpotOn reserves the right to use Client’s name in promotional, marketing, and presentation materials for the purpose of marketing SpotOn’s Services and promoting SpotOn, and in communications with investors and prospective investors and with third parties with which SpotOn does, or seeks to do, business.
    5. 32.5. Entire Agreement; Severability. This Agreement constitutes the entire agreement between the Parties with respect to the transactions contemplated hereby and supersedes all prior agreements and understandings between the parties relating to such transactions, whether written or verbal. If any term of this Agreement is to any extent unenforceable all other terms hereof shall remain in full force and effect. This Agreement may be amended only by written consent of both Parties.
    6. 32.6. No Waiver; Amendment. The failure of either Party to exercise in any respect any right or remedy provided for herein shall not be deemed a continuing waiver or a waiver, partial or complete, of any future breach or any other right or remedy hereunder or thereunder. Any amendment proposed by Client to this Agreement will not be effective unless accepted in a writing signed by SpotOn. SpotOn reserves the right, in its sole discretion, to modify or replace any part of this Agreement at any time, and such modified terms will be effective upon the stated effective date of such change. SpotOn will notify Client thirty (30) days prior to the effective date of such change, unless a lesser notice period is required by applicable laws, rules or regulations. Client’s continued use and access of the Services following the effective date of such change to this Agreement constitutes Client’s acceptance of those changes.
    7. 32.7. Expenses; Attorney Fees. In the event either Party brings action against the other Party with respect to a breach of this Agreement and the action results in a final judgment, the prevailing Party shall be entitled to receive reimbursement for all reasonable costs and expenses, including attorney’s fees, from the other Party.
    8. 32.8. Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors, assigns and legal representatives. Either Party shall have the right to assign or otherwise transfer its rights or obligations under this Agreement with 30 days’ prior written notice to the other Party.
    9. 32.9. Advance Notice of Asset Sale. At least forty-five (45) days prior to the sale of all or substantially all of Client’s assets to a purchaser, Client shall notify SpotOn regarding its intent to assign or terminate this Agreement.
    10. 32.10. Bankruptcy or Insolvency. In the event of a bankruptcy or insolvency proceeding, Client shall: (a) immediately notify SpotOn of the bankruptcy or insolvency proceeding, (b) continue to perform its obligations under this Agreement; and (c) seek any court approval as may be necessary to continue to perform its obligations under this Agreement.
    11. 32.11. Usage. The words “includes,” “including,” or any variation thereof means “including, without limitation” and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it.
    12. 32.12. Notices. All notices required or permitted under this Agreement shall be sent by e-mail, if to SpotOn, and, by mail to the addresses set forth below or to such other address as may be designated by a Party by giving written notice to the other Party pursuant to this section:

        SpotOn Flex LLC
        Attn: Legal@spoton.com
        100 California Street, 9th Floor
        San Francisco, CA 94111
        Attn: Client’s address on file with SpotOn

33. 33. Electronic Signatures and Communications. By proceeding in the enrollment process or otherwise agreeing to this Agreement, Client explicitly consents (to the fullest extent permitted by applicable law) to allow Client’s authorized employee to accept this Agreement and to receive all notices and information via emails, push notifications, text message, and other similar means. For the avoidance of doubt, this consent applies to all communications that we may otherwise be required to send or provide to Client in paper form or by mail. SpotOn nevertheless reserves the right to communicate with Client in paper form or by mail.