EFFECTIVE AS OF OCTOBER 30, 2026
SPOTON TRANSACT LLC TERMS OF SERVICE FOR SPOTON PAYROLL
These SpotOn Transact LLC (“SpotOn”) Terms of Service (“Terms”) for SpotOn Payroll, outline the terms regarding Your use of SpotOn Payroll.
These Terms are a legally binding contract between You and SpotOn. If You do not agree with these Terms, do not register for a SpotOn account, or purchase or use Services.
BY ACCEPTING, USING, OR ACCESSING THE SERVICES, OR REGISTERING FOR A SPOTON ACCOUNT, YOU ACKNOWLEDGE THAT YOU READ, UNDERSTAND, AND AGREE TO THE TERMS.
IF YOU USE THE SERVICES ON BEHALF OF AN ENTITY, YOU AGREE TO THESE TERMS FOR THAT ENTITY AND REPRESENT AND WARRANT TO SPOTON THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY TO THESE TERMS (IN WHICH EVENT, "YOU" AND "YOUR" REFER TO THAT ENTITY), UNLESS THAT ENTITY HAS A SEPARATE PAID CONTRACT IN EFFECT WITH SPOTON, IN WHICH EVENT THE SEPARATE PAID CONTRACT GOVERNS YOUR USE OF THE SERVICES.
ARBITRATION NOTICE. EXCEPT FOR CERTAIN DISPUTES DESCRIBED IN SECTION 22 (ARBITRATION; CLASS ACTION WAIVER), YOU AGREE THAT DISPUTES ARISING UNDER THESE TERMS WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND BY ACCEPTING THESE TERMS, YOU AND SPOTON ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU MAY OPT OUT OF THIS AGREEMENT TO ARBITRATE DISPUTES ARISING UNDER THE TERMS BY FOLLOWING THE PROCEDURES SET FORTH IN SECTION 22 (ARBITRATION; CLASS ACTION WAIVER).
1. DEFINITIONS
The following capitalized terms have the following meanings:
“Affiliates” means, with respect to each party, entities that Control, are controlled by, or are under common Control with such party.
“Aggregated Data” means statistics, benchmarks, measures, and other information or data that is: (a) anonymized by removing Personal Data or other information so the data cannot be attributable to a specific SpotOn customer or user, or You (using commercially reasonable efforts or as required by Applicable Laws), or (b) combined with the other data, or (c) presented in a way which does not reveal a specific SpotOn customer or user, or Your identity (using commercially reasonable efforts or as required by Applicable Laws).
“Applicable Laws” means applicable national, federal, state, and local laws, rules, guidelines, court or government agency orders, and regulations in the United States and the country in Your address on the Quote.
“CCPA” means California Consumer Privacy Act of 2018, Cal. Civil Code § 1798.100 et seq., as amended by the California Privacy Rights Act of 2020 ("CPRA"), and its implementing regulations, each as may be further amended, and enforced by the California Privacy Protection Agency ("CPPA").
“Confidential Information” means non-public information (a) labeled or identified “confidential” (or the like), or (b) (either in writing or verbal) of a type that a reasonable person should understand to be confidential, including without limitation, Customer Data, Personal Data, a third party’s information, discounts, pricing, strategic roadmaps, product plans, product designs, architecture, technology and technical information, security processes and reports, audit reviews, business and marketing plans, business processes, credit card/banking information, and information contained in Your account. Confidential Information does not include information a receiving party’s written records show was: (1) already known to receiving party at the time of disclosure; (2) disclosed to the receiving party by a third party who had the right to make such disclosure without confidentiality restrictions; (3) or through no fault of the receiving party has become, generally available to the public; or (4) independently developed by receiving party without use of the disclosing party’s Confidential Information.
“Claim” means claim, demand, lawsuit, dispute, or proceeding.
“Content” means files and meta-data associated with all files, information, text, software, music, sounds, graphics, videos, messages, tags, interactive features, photos, drawings, documents, data, or other materials or media.
“Control” means the beneficial ownership of more than fifty percent (50%) of the voting power or equity in an entity.
“Credentials” means access designations or authentication information (e.g. multi-factor authentication or second access factors, user ID, password, token, certificate, or Single Sign On) to access Services, or a third party product or service.
“Customer Data” means data that You provide to SpotOn for processing in connection with the Services, which may include Personal Data, and information SpotOn maintains for supporting You as a SpotOn customer, consisting only of (1) names, emails, addresses, telephone numbers, photos or videos (i.e. recorded video conference meetings where You consent to recordings), and other business contact information of Your Representatives, (2) communications between You and SpotOn relating to the performance of Services, and (3) communications between You and SpotOn relating to the negotiation of Quotes, SOWs, and other contracts governed by, incorporated into, and made part of the Terms.
“Data Protection Claims” means any Claims arising from SpotOn’s breach of Section 12 (Confidential Information) (except Customer Data that leverages unencrypted endpoints), where such breach results in the unauthorized disclosure of Confidential Information (except Customer Data that leverages unencrypted endpoints).
“Deliverables” means the product of all work performed under the Terms, including without limitation notes, drawings, electronic files, reports, graphics, documentation, computer programs (e.g. source code, object code, listings), inventions, creations, equipment, devices, models, processes, ideas, methods, and work-in-progress.
“Documentation” means SpotOn’s then-current operating manuals, user instructions, technical literature, user guides, knowledge base, release notes, featured articles, and functional materials describing the features, plans, options, and functions of the Services made generally available by SpotOn to its customers or users.
“SpotOn Tools” means the tools, libraries, know-how, ideas, concept, techniques, and expertise SpotOn uses to develop the SpotOn Materials.
“Fees” means fees quoted to You.
“Feedback” means suggestions regarding features, functionality, modifications, enhancements, improvements, or performance of SpotOn services or products.
“Force Majeure Event” means cause beyond the reasonable control of an affected party (including, without limitation, pandemic (e.g. COVID-19), war, wind, natural disaster, lightning, fire, earthquake, flood, hurricane, riots, tsunami, Internet service provider failures or delays, denial of Internet service attacks, failures or delays of third-party technology service providers, banks, banking partners, ACH operators, payment networks, or other payment or financial institution partners, and other failures or disruptions of third-party services).
“Identifiers” means recognizable or distinguishing names, servicemarks, logos, identifiers, trademarks, symbols, words, phrases, designs, or a combination of these items that identify the source of goods or services.
“Incident” means a breach of security or confidentiality leading to accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access to Your Personal Data or Customer Data, in SpotOn’s possession, custody, or control. “Incident” does not include unsuccessful attempts or activities that do not compromise the security or confidentiality of Your Personal Data or Customer Data, including, without limitation, unsuccessful log-in attempts, pings, port scans, denial of service attacks, and other network attacks on firewalls or networked systems.
“Insolvency Proceeding” means bankruptcy or insolvency proceeding.
“Intellectual Property” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights.
“Issue” means a single reproducible problem affecting the features and functionality of the Services.
“Losses” means damages, attorney fees, expert witness fees, and litigation costs.
“Malware” means without limitation, viruses, worms, time bombs, Trojan horses, and other malicious code, files, scripts, agents, or programs. “Malware” does not include programs used by SpotOn to terminate or suspend Your access to Services when You (a) violate Section 7 (Acceptable Use), Section 25 (Specific Services Terms), or Services use restrictions detailed in the Documentation or these Terms, or (b) exceed the Subscription Period.
“Outsourced Providers” means third parties to whom You or Your Affiliates outsource Your business operations functions (i.e. accountants, bookkeepers).
“Personal Data” means information relating to an identified or identifiable individual who is a resident of the United States, including “Personal Information” as defined under section 1798.140 of the CCPA.
“Post” means post, upload, share, submit, email, provide, transmit, or publish.
“Process” means any operation or set of operations performed upon Your Personal Data, whether by automatic means, including collection, recording, organization, use, transfer, disclosure, storage, manipulation, combination, and deletion of Your Personal Data.
“Price List” means the official SpotOn list Fees for its Services.
“Professional Services” means implementation, configuration, education, or operational or technical consulting related to the Software. “Professional Services” does not generally include development of Software and/or Intellectual Property for the customer.
“Proof of Entitlement” means a record (i.e. invoice, payment receipt, confirmation, license certificate or key, or product) of the SKUs, types, quantities, and other use metrics of Your purchases from SpotOn.
“Quote” means an enrollment, proposal, or ordering document.
“Representatives” means a party’s employees or independent contractors.
“Resulting Error” means any error arising directly or indirectly from information or modifications to information provided by or on behalf of You.
“Services” means collectively the SpotOn Payroll Site, products, services (including Professional Services, Subscription Services), Support, and other properties SpotOn owns or operates.
“Site” means SpotOn Payroll websites (including http://dashboard.spoton.com/)
“Software” means SpotOn Payroll-branded software, releases, tools and utilities.
“SOW” means a statement of work or proposal issued by SpotOn that describes the Professional Services.
“Subscription Period” means the duration of Your Subscription Services specified in a Quote, commencing on the start date, and continuing up to the renewal date or end date.
“Subscription Services” means the SpotOn Payroll-branded software-as-a-service platform, including Software or downloadable related applications made available to You via the Internet from computer equipment owned or operated by or for SpotOn.
“Support” means telephone, email, text, chat, or web assistance in the resolution of an Issue You report to SpotOn.
“Taxes” means all transaction taxes, including foreign withholding taxes, and local, state, provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added taxes, excise, use, goods and services taxes, consumption taxes.
“Third-Party Products” means software, code, applications, services, products, files, or data from Third-Party Providers.
“Third-Party Providers” means SpotOn licensors or suppliers.
“You”, “Yourself”, and “Your” means a natural person or entity that is the customer, end user, or user of Services.
“Your Personal Data” means Personal Data that You provide or make available to SpotOn, or that SpotOn otherwise Processes on Your behalf, in each case, in connection with the provision of or as a part of the Services pursuant to these Terms at any time until the expiration or termination of the Terms or the Services.
2. CHANGES TO THESE TERMS
SpotOn reserves the right to modify these Terms. SpotOn will post the most current version of these Terms at the Site. Your continued use of Services after SpotOn publishes or notifies You about SpotOn’s changes to the Terms means You consent to the updated Terms.
Notwithstanding the foregoing, if You enter into a paid transaction, the Terms existing on the effective date of Your Quote will govern until the Services expire or renew, after which the then-current Terms apply to any renewals.
3. YOUR ACCOUNT
Certain aspects of the Services may require You to obtain an account by completing a registration form and designating Credentials. When registering with SpotOn You must: (a) provide true, current, accurate, and complete information about Yourself on the registration form and (b) maintain such information so it continues to be true, current, accurate, and complete.
You are entirely responsible and liable for all information You Post via the Services, and all activities occurring under Your account.
You are responsible for maintaining the confidentiality of, and You agree not to share or transfer account Credentials. SpotOn will not be liable for Losses You incur relating to Your non-compliance with this Section 3. Only You may use Your SpotOn account. If You become aware of unauthorized use of the Services or Your account, or have questions about Your account, contact SpotOn Support at support@spoton.com.
If an entity (e.g. employer) provided You with Your account, this entity has rights to Your account and may: (a) manage Your account (including suspending or canceling); (b) reset Your password; and (c) view Your usage and data, including how and when Your account is used.
4. ELECTRONIC COMMUNICATIONS
Electronic Notices; Emails. By registering an account with SpotOn or purchasing or signing up for Services, You understand and agree that SpotOn may send (including via email) You information regarding the Services, such as: (a) notices about Your use of the Services, including use violations; (b) updates to the Services and new features, functionalities, services, or products; (c) promotional information regarding SpotOn or third party products and services; and (d) Proof of Entitlements. You may unsubscribe from promotional information by following the instructions in the notices. If You don't consent to receive notices (other than promotional information) electronically, stop using the Services.
Electronic Signatures. Each party agrees that the electronic signatures, whether digital or encrypted, of the parties included in the Terms, Quotes, SOWs, and other contracts governed by, incorporated into, and made part of these Terms, are intended to authenticate the writing and to have the same force and effect as manual signatures. Delivery of the Terms, Quotes, SOWs, and other contracts, bearing an original manual or electronic signature by facsimile transmission (including a facsimile delivered via the Internet), by electronic mail in “portable document format” (“.pdf”) or similar format intended to preserve the original graphic and pictorial appearance of a document, or through the use of electronic signature software (e.g. DocuSign, AdobeSign, HelloSign) will have the same effect as physical delivery of the paper document bearing an original signature.
5. SECURITY AND PRIVACY
SpotOn Security. In the event of a security Incident defined by Applicable Laws as reportable to authorities, SpotOn will notify You, or the owners of Personal Data You have custody of, in accordance with Applicable Laws. For Customer Data, SpotOn will notify You, for You to notify any affected persons.
Your Security Responsibilities. You are responsible for:
(a) ensuring the use of secure endpoints; You are responsible for (1) ensuring encryption for the Customer Data flowing to or from the endpoint, to or from SpotOn service data center, and (2) selecting an appropriately encrypted endpoint.
(b) managing the access to the SpotOn Tools used and ensuring appropriate role-based access.
(c) notifying SpotOn at support@spoton.com if You detect or suspect a security Incident related to Services.
(d) Ensuring that any Payment Card Data (as defined in PCI-DSS) is tokenized data only (no PAN or other PCI sensitive data as defined by PCI-DSS).
SpotOn Privacy Policy. You acknowledge Your use of the Services is subject to the SpotOn terms and privacy policies (“SpotOn Terms and Policies”), and You agree to the SpotOn Terms and Policies.
CCPA.
CCPA Definitions. “Business Purpose”, “Commercial Purpose”, “Personal Information”, “Sell”, “Service Provider”, “Third Party” have the meanings set forth in the CCPA. “Consumer” means a natural person who purchases Services for personal use. “Consumer Rights Request” means a request from an individual relating to that individual’s Personal Information that is Your Personal Data. “Sensitive Personal Information” and “Contractor” have the meanings set forth in the CCPA. Customer Data processed in connection with SpotOn Payroll, including Social Security numbers, financial account and routing numbers, and precise geolocation (where applicable), may constitute Sensitive Personal Information.
Processing of Personal Information. SpotOn is not a Third Party as defined in the CCPA. SpotOn is a Service Provider as defined in the CCPA. SpotOn shall only Process Your Personal Data for the Business Purpose of providing the Services. Unless otherwise permitted under the Terms or required by the CCPA, SpotOn shall not retain, use, or disclose Your Personal Data for a Commercial Purpose, or any purpose other than to perform the Business Purposes contemplated by the Terms. SpotOn shall not retain, use, or disclose Personal Information outside of the direct business relationship between a Consumer and You. SpotOn shall not Sell Your Personal Data. Your provision of access to Personal Information for Processing is not part of and explicitly excluded from the exchange of consideration, or any other thing of value, between the parties. SpotOn shall Process Sensitive Personal Information only for the purposes permitted under the CCPA and shall not use or disclose Sensitive Personal Information in a manner inconsistent with a reasonable Consumer's expectations. If SpotOn receives a verified request to limit the use of Sensitive Personal Information, SpotOn will refer the Consumer to You to the extent the request relates to Customer Data. To the extent the CCPA treats SpotOn as a Contractor with respect to any Customer Data, references in this CCPA section to "Service Provider" include SpotOn acting as a Contractor, and SpotOn's obligations under this section apply equally in that capacity.
CCPA Consumer Rights Request. If SpotOn receives a Consumer Rights Request for Customer Data, to the extent legally permissible, SpotOn will advise the individual to submit the Consumer Rights Request to You. You will be responsible for responding to such Consumer Rights Request. SpotOn shall reasonably cooperate with Your written requests to enable You to comply with a Consumer Rights Request.
Other U.S. State Privacy Laws. To the extent any other U.S. state privacy law applicable to the Services (including the Virginia Consumer Data Protection Act, Colorado Privacy Act, Connecticut Data Privacy Act, Utah Consumer Privacy Act, and similar laws of other states, each as amended, collectively, “Other State Privacy Laws”) imposes obligations on the parties with respect to Your Personal Data, (a) SpotOn acts as a “processor,” “service provider,” or similar role, and You act as the “controller,” “business,” or similar role, as those terms are defined under the applicable Other State Privacy Law, (b) SpotOn shall Process Your Personal Data only for the purposes of providing the Services and in accordance with Your documented instructions, and (c) You are solely responsible for providing any notices to, and obtaining any consents from, individuals and for responding to consumer rights requests under the applicable Other State Privacy Law, except as SpotOn agrees to provide reasonable cooperation at Your written request.
Biometric Data. If You enable biometric time-clock or other biometric identification functionality within the Services (e.g., fingerprint- or facial-recognition-based punch-in), You are solely responsible for complying with all Applicable Laws governing the collection, use, retention, and destruction of biometric identifiers or biometric information, including the Illinois Biometric Information Privacy Act, Texas Capture or Use of Biometric Identifier Act, Washington's biometric privacy law, and similar laws of other states, including obtaining any required written consent, providing any required retention and destruction policy, and making any required disclosures to Your employees before enabling such functionality. SpotOn is not responsible for obtaining such consents or disclosures on Your behalf.
Aggregated Data. SpotOn will be free (during and after the expiration or termination of the Terms or the Services), without obligation to You, to collect, develop, create, extract, compile, synthesize, analyze, use, and/or commercialize, or share with third parties, Aggregated Data for any purpose.
Credentials. In providing You Support or Professional Services, or allowing You to use features designed to interoperate with Services, SpotOn may need access to Your Credentials. If You agree to reveal to SpotOn Your Credentials, You shall provide Credentials with sufficient permissions via a secure password management system for SpotOn Representatives to install and/or configure Subscription Services, perform Support obligations, or allow access to accounts on the Subscription Services. Upon providing Your Credentials to SpotOn, You grant SpotOn permission to access Your accounts to perform the actions mutually agreed. You acknowledge and agree there are risks in giving SpotOn access to Credentials, and release SpotOn from liability for damage, loss, or destruction to Your hardware, software, files, data (including Customer Data), or environments (technical, network, systems, servers, or computer), which may occur during, or as a result of, having access to Credentials. YOU EXPRESSLY WAIVE ALL CLAIMS FOR LIABILITY, DESTRUCTION, LOSSES, INCLUDING WITHOUT LIMITATION ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER, LOSS OF PROFITS OR REVENUE, OR CONSEQUENTIAL DAMAGES WHICH MAY OCCUR AS A RESULT OF SPOTON ACCESSING CREDENTIALS. You knowingly and voluntarily waive any and all rights and benefits conferred by California, United States Civil Code Section 1542, which reads: "A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party."
6. LICENSE
Subscription Services. Subject to these Terms, SpotOn grants You a worldwide, non-exclusive, non-transferable, non-assignable (except as set forth in Section 24 (Miscellaneous)), and non-sublicensable license to access and use the Subscription Services identified in a Quote solely to support the internal business operations of You and Your Affiliates for the Subscription Period according to these Terms and the Documentation. SpotOn reserves all rights not specifically granted.
Evaluation. If You use the Subscription Services for evaluation, internal testing, free trial, or proof of concept, without paying SpotOn Fees, SpotOn grants You a revocable, worldwide, non-exclusive, non-transferable, non-sublicensable, and non-assignable (except as set forth in Section 24 (Miscellaneous)) license to access and use the Subscription Services identified solely for Your own non-production or production (if specified in the Quote), internal evaluation to test the Subscription Services according to the Documentation (“Evaluation Right”). Each Evaluation Right shall be for the Subscription Period mutually agreed by the parties at the commencement of the Evaluation Right, but if the parties do not specify a Subscription Period in a Quote, the Subscription Period shall not exceed six (6) months, subject to SpotOn’s right to terminate the Evaluation Right in its sole discretion at any time. The Evaluation Right will be at no Fees, unless You exceed the Subscription Period or scope of the Evaluation Right, or do not comply with these Terms or the Documentation. Your Evaluation Right may be limited in functionality and features, and SpotOn may change the limits at its sole discretion without notice. You acknowledge and agree that (a) SpotOn provides Evaluation Rights “AS IS” with no warranties or Support, (b) Section 19 (Indemnification) on SpotOn Indemnification does not apply to Evaluation Rights, and (c) TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL SPOTON’S AND ITS AFFILIATES’ TOTAL AND CUMULATIVE LIABILITY, FOR ALL CLAIMS OF ANY NATURE ARISING OUT OF OR RELATED TO THE EVALUATION RIGHT EXCEED ONE HUNDRED UNITED STATES DOLLARS ($100).
7. ACCEPTABLE USE
You must not: (a) conduct activity designed to overload, harm, impede the normal functioning, damage, disable, overburden, or impair the Services (or network connected to the Services); (b) make generally available to third parties as a billable service, resell, redistribute, package, repackage, sell, rent, sub-rent, lease, sub-license, sublease, encumber, or otherwise transfer the Services or any part of it; (c) use unauthorized means to modify, reroute, or gain access to the Services (e.g. hacking, password mining) or attempt to carry out these activities; (d) use a malicious automated process or service (such as Malware bots, scripts, data gathering or extraction methods, spiders, or periodic cachings of information stored by SpotOn) to access or use the Services, or accounts, computer systems, or networks connected to the Services; (e) violate the allocations and amounts, and the features and functionality provided in a Service; (f) use the Services to violate Applicable Laws or distribute Malware (You specifically agree not to upload files or Customer Data to Subscription Service for SpotOn to Process that are infected with Malware); (g) disclose, conduct, perform, publicly display, publish, or republish the results of benchmark, performance, comparison, or competitive tests or analysis involving the Services for any reason or purpose without SpotOn prior written approval; (h) reverse-engineer (including reverse compiling to ensure interoperability), decompile, disassemble, modify, translate, or make any attempt to discover or gain access to the source code, source files, underlying algorithms of SpotOn Intellectual Property, or structure of all or any portion of Services, or create derivative works from Services; (i) violate SpotOn’s copyright fair use policy (Section 11 (Copyright Complaints and Removal Policy); (j) impersonate a natural person, including a SpotOn Representative, or misrepresent Your affiliation with a natural person or entity; (k) use meta tags or “hidden text” with SpotOn’s or Third-Party Providers’ Identifiers; (l) remove SpotOn proprietary or copyright notices from the Services; (m) reproduce the Subscription Services, or any component thereof; (n) build a similar or competitive product or service; (o) use Services in any manner not authorized by the Terms; (p) distribute, Post, or use Content You don’t have the right to (i.e. securities violations, under contractual or fiduciary relationships (e.g. non-disclosure agreement breach) or is illegal (i.e. violates or infringes the Intellectual Property rights or the privacy or publicity rights of any natural person or entity (e.g. attempt to obtain unauthorized access to Services, or SpotOn’s or Third-Party Providers’ accounts, systems, networks, servers, computers, or databases)); harm minors (e.g. child pornography); mine information to obtain Personal Data; discredit or disparage SpotOn, SpotOn Affiliates, Third-Party Providers, or a third party)); (q) forge TCP/IP packet or email headers or manipulate SpotOn’s or a third party’s Identifiers or message or newsgroup posting in order to disguise the origin of Content; or (r) Post Content that contains misrepresentations to the Site.
To the extent required by Applicable Laws, SpotOn will make available to You information reasonably required to ensure Services interoperability (such information considered Confidential Information and subject to Section 12 (Confidential Information)) with Your independently managed products or services, upon Your written request identifying relevant details of the products or services which interoperability is sought and the information needed, provided that You first pay SpotOn any outstanding Fees.
SpotOn retains the right to block, delete, or otherwise prevent delivery of any file, email, or other communication to or from the Services.
You agree to comply with Services use restrictions detailed in the Documentation for the specific Services.
Permitted Third Party Usage. You may permit Your Affiliates, and Outsourced Providers to use the Services provided that: (a) the Affiliates and Outsourced Providers shall only use and/or operate the Services, in accordance with the rights granted herein and Services use restrictions (including Section 7 (Acceptable Use) and Section 25 (Specific Services Terms)), (b) the actual usage of Services by You, Your Affiliates, and Outsourced Providers, in aggregate shall not exceed the Proof of Entitlement You purchased, (c) You shall ensure that Your Affiliates and Outsourced Providers are aware of and comply with these Terms and the Documentation; and (d) You shall be responsible for the acts and omissions of Your Affiliates’, and Outsourced Providers’ use of the Services.
Content.
Ownership. You agree that You are either the original owner of Content You Post to the Services, or You have the necessary rights and permissions to authorize SpotOn to use or Process Your Content. You agree to provide SpotOn evidence of such rights and permissions if SpotOn requests.
Back-up. You are responsible to back-up Your Content. SpotOn is not a Content-archiving service and does not sell Content storage services. If Applicable Laws prohibit exclusion of liability for lost Content, SpotOn will only be liable for cost of commercially reasonable and customary efforts to recover the lost Content from Your last available back-up.
License from You for SpotOn to Host and/or Process Customer Data. You own all right, title, and interest to Customer Data. You are solely responsible for the accuracy, completeness, appropriateness, quality, and legality of all Customer Data and for obtaining all rights related to Customer Data required by SpotOn to perform the Services. You hereby grant SpotOn, SpotOn Affiliates, and their Representatives a worldwide, fully paid, royalty free, transferable, sub-licensable, non-exclusive license and right to use, reproduce, host, copy, transmit, process, distribute, modify, translate, and create derivative works of Customer Data, and run, perform, or display Customer Data, and any program code created by or for You using the Services (a) as necessary for SpotOn to provide the Services, perform Terms obligations, and exercise SpotOn’s rights, titles, and interests under the Terms; (b) as necessary to provide Support, address Services issues and requests, or enhance, maintain, or improve the Services; (c) as required by Applicable Laws; (d) as requested by You; or (e) to investigate or address security Incidents.
8. SUSPENSION AND TERMINATION OF SERVICES
Except as otherwise provided in Section 25 (Specific Services Terms), SpotOn may suspend or terminate the Services at any time, in its sole discretion, if SpotOn reasonably believes in good faith You are in violation of the Terms or Applicable Laws, and Your material breach cannot be cured within 30 days.
9. SPOTON PROPRIETARY RIGHTS
All contents of the Site and Services, including but not limited to logos, designs, text, software, technical drawings, configurations, graphics, files, icons, images, audio clips, and their compilation (meaning the selection, collection, assembly, arrangement) and SpotOn Confidential Information belong to SpotOn, and/or its Third-Party Providers or SpotOn Affiliates.
SpotOn or its Third-Party Providers or SpotOn Affiliates own and reserve all right, title, and interest in and to the Services and all hardware, software, and other items used to provide the Services, other than the rights expressly granted to You to use the Services and SpotOn Confidential Information. No title to, or ownership of, Intellectual Property or proprietary rights related to the Services or SpotOn Confidential Information is transferred to You pursuant to these Terms.
You shall not copy the Site, or any part of the Site.
Feedback. In the event You make Feedback that SpotOn adopts for its products or services, such Feedback shall be deemed automatically assigned under these Terms to SpotOn, and become the sole and exclusive property of SpotOn. Prior to submitting Feedback to SpotOn, You agree to obfuscate Your Personal Data and Confidential Information.
SpotOn Identifiers. “SpotOn Transact” and the SpotOn Transact logo are registered trademarks of SpotOn Transact LLC in the United States and other countries. SpotOn Payroll, the SpotOn Payroll logo are unregistered trademarks of SpotOn Transact LLC in the United States and other countries. All other trademarks, service marks, registered trademarks, or registered service marks are the property of their respective owners.
This Section 9 (SpotOn Proprietary Rights) survives expiration or termination of the Terms or the Services.
10. THIRD-PARTY PRODUCTS, CONTENT, WEBSITES
Third-Party Products. The Services may include Third-Party Products. SpotOn grants You the specific rights the Third-Party Providers provide SpotOn in the Third-Party Products.
Third Party Content or Websites. The Site provides links to third party websites or third party Content for Your convenience. SpotOn makes no representations or endorsements, and is not responsible for the reliability of statements made on third party websites or third party Content. You access such third party websites or Content at Your own risk.
11. COPYRIGHT COMPLAINTS AND REMOVAL POLICY
SpotOn respects the Intellectual Property of others and will respond to alleged copyright infringement notices that comply with Applicable Laws.
SpotOn reserves the right to close Your accounts or remove information alleged to violate copyright laws or these Terms.
Report alleged copyright violations to: Attn: Copyright Agent, SpotOn Transact LLC, 100 California Street, 9th Floor, San Francisco, CA 94111, Email: Legal@spoton.com
12. CONFIDENTIAL INFORMATION
Customer Data Disclosures. You agree to disclose to SpotOn and its Third Party Providers only Personal Data and Customer Data in which You have obtained consent from data subjects (identified or identifiable natural persons), or otherwise have the right to disclose to SpotOn for Processing.
Protection. Both parties agree to: (a) treat each party’s Confidential Information with the same degree of care a party treats its own Confidential Information, but not less than reasonable care; (b) use each party’s Confidential Information only in connection with these Terms and the Services; and (c) only share Confidential Information with Representatives and Affiliates who have a need to know to carry out these Terms or as needed for the Services, and signed a non-disclosure agreement to treat Confidential Information as confidential or have confidentiality obligations (e.g. professional responsibility rules) no less restrictive than this Section 12 (Confidential Information).
Compelled Disclosures. If the receiving party is requested or compelled by Applicable Laws to disclose the disclosing party's Confidential Information ("Compelled Disclosure"), the receiving party’s disclosure of such Confidential Information shall not constitute a breach of these Terms provided that the receiving party gives the disclosing party prompt written notice, unless notice is prohibited by Applicable Laws, so that the disclosing party may attempt to seek an appropriate remedy. The receiving party shall (a) disclose only that portion of the Confidential Information necessary to comply with Applicable Laws, (b) assert the privileged and confidential nature of Confidential Information against the third party seeking disclosure; (c) reasonably cooperate with disclosing party to protect against disclosure and/or obtain a protective order narrowing the scope of the Compelled Disclosure at disclosing party’s expense; and (d) continue to treat Compelled Disclosures as confidential in other respects.
Confidential Information Return. Confidential Information always remains the property of its owner. Upon termination or expiration of the Terms, or upon written request of the disclosing party, the receiving party shall promptly return to the disclosing party or destroy, to the extent commercially and technically feasible, all tangible materials (e.g. notes) and copies thereof, containing the Confidential Information, except the receiving party may retain copies of disclosing party’s Confidential Information (a) stored electronically on data archives or back-up systems or (b) to comply with Applicable Laws applicable to the receiving party, provided that such copies shall be subject to the terms of these Terms while in receiving party’s possession.
This Section 12 (Confidential Information) survives expiration or termination of the Terms or the Services.
13. SUPPORT AND SERVICES UPDATES
SpotOn may end of life Services and related Support, add or remove functionalities or features, or suspend or stop the Services and Support altogether, (a) without notice for Services and Support SpotOn provides for no Fees, (b) with notice according to the life cycle for the specific version or release of the Services and Support SpotOn provides for a Fee, subject to SpotOn continuing to provide Services and Support according to a Quote until the Subscription Period end date.
14. PROFESSIONAL SERVICES
SOW. You may receive Professional Services, as further described in a mutually agreed SOW or Quote. Each SOW or Quote will include: (a) a description of the services, (b) a Fee for the services. The Fee will be as follows: (1) for Time and Materials, an hourly rate and the estimated number of hours; (2) for Fixed Price, a total Fee. Expense reimbursements, when applicable, will be in addition to the Fee. SpotOn will perform Professional Services with Representatives under SpotOn’s sole direction.
Resources. Resources (i.e. facilities, Representatives, hardware, software) for Professional Services shall be mutually agreed no later than ten (10) business days prior to the Professional Services start date. You shall provide resources as reasonably necessary for SpotOn to timely complete the Professional Services.
Changes or Delays. If You request changes to a SOW or cause delays in the completion, additional Fees may apply, including Fees for additional hours to transfer information, or re-plan or re-start the Professional Services. If You cause delays in the completion by more than ten (10) business days, SpotOn may terminate the SOW or Quote for cause under Section 17 (Duration; Termination).
SpotOn Materials. SpotOn shall own all rights, title and interest in and to the Documentation, templates, training materials, recordings, notes, drawings, designs, inventions, systems, processes, development, discovery, work of authorship, equipment, methods, and other items (collectively the “SpotOn Materials”), including enhancements, improvements, and derivatives, SpotOn may provide You as part of the Professional Services (including Intellectual Property therein, but excluding Your Confidential Information and Your Identifiers that may be included in the SpotOn Materials, collectively, “Your Property”). SpotOn shall have the right to use Your Property solely to provide Professional Services to You. Until the expiration or termination of these Terms or the Services, after Your full payment of the SOW for the Professional Services, SpotOn will provide You a worldwide, royalty free, limited, non-exclusive, non-sublicensable, non-transferable, and terminable license to use SpotOn Materials solely for Your internal operations in connection with Your authorized use of the Services.
SpotOn Tools. SpotOn shall own any Intellectual Property in the SpotOn Tools. Nothing herein shall be construed to assign or transfer Intellectual Property in the SpotOn Tools. To the extent SpotOn Tools are delivered with or as part of the SpotOn Materials, they are licensed, not assigned, to You, on the same terms as the SpotOn Materials.
Customer Intellectual Property. Customer acknowledges and agrees Professional Services will not result in Customer Intellectual Property or Deliverables owned by Customer. In general, Professional Services do not involve custom Deliverables.
15. FEES; TAXES
Fees. SpotOn offers no cost and paid Services. If You choose a paid Service, You agree to pay the Fees according to the Quote or SOW. SpotOn reserves the right to change its Fees and discounts, but such changes will not apply to completed purchases, or unexpired Quotes or SOWs pending Your acceptance. After a Subscription Period ends, Your use of the Services will be charged at the then-current Price List.
Discounts. Any Fees discounts You receive in a Quote or SOW are one-time only, and do not apply to renewal terms. Upon the expiration of each Subscription Period, annual Subscription Services Fees and Support Fees are subject to increase.
Taxes. All Fees for Services do not include Taxes. SpotOn may calculate Taxes payable by You based on the billing information You provide at the time of purchase. All Fees are payable in full and without reduction for Taxes. You shall not withhold from Fees the Taxes imposed upon You by a taxing authority. You are responsible for paying all Taxes associated with Fees, excluding SpotOn income and payroll taxes. If You are legally entitled to an exemption from the payment of Taxes, You will provide SpotOn with legally sufficient tax exemption certificates for each taxing jurisdiction for which You claim exemption. Unless prohibited by law, SpotOn will apply the benefits of a requested tax exemption to charges after the date SpotOn receives and reasonably processes the tax exemption certificates.
Currency. You will pay the Fees in the currency in the Quote. You are responsible for all charges related to using the purchased Services (including data charges and currency exchange settlements).
Non-refundable and No Cancellation. Except as specifically set forth in these Terms, all payments are non-cancelable, and all payments made (including shipping, handling, and Taxes) are non-refundable, to the extent not prohibited by Applicable Laws, or except in jurisdictions where an item is refundable.
This Section 15 (Fees; Taxes) survives expiration or termination of the Terms or the Services.
16. BILLING/PAYMENT
If You select a paid Service, You must provide SpotOn current, complete, accurate, and authorized payment method information. You authorize SpotOn or its third-party payment processing service provider to charge Your payment method for the Services You select.
After You sign a Quote and create a SpotOn account, SpotOn will provide You a Proof of Entitlement.
You shall pay Fees according to the payment terms in a Quote. Failure to pay expenses, Taxes, or Fees may result in SpotOn suspending or terminating Services.
At SpotOn’s discretion, past due amounts may accrue a late Fee equal to the lesser of (a) 1.5% per month, or (b) the maximum Applicable Laws allow.
This Section 16 (Billing/Payment) survives expiration or termination of the Terms or the Services.
17. DURATION; TERMINATION
Subscription Services Renewals. The Quotes indicate the start (if not indicated, the last signature date on the Quote) and end dates for each Subscription Period. A Subscription Period may also begin on the date You first log in to the Services if You purchase Services without signing a Quote. The Subscription Services and these Terms automatically renew for additional terms at the then-current SpotOn Price List for the same duration as the initial Subscription Period, at the end of each Subscription Period, unless either party notifies the other party in writing of its intent not to renew the Subscription Services at least thirty (30) days’ prior to the end of the Subscription Period.
Termination for Cause. Either party may terminate these Terms or the Services for cause with written notice to the other party of a material breach of the Terms (a) upon thirty (30) days’ written notice if such breach remains uncured after the expiration of such period, or (b) immediately if such breach cannot be cured. Outstanding Fees shall be paid by each party to the other party within 30 days of the effective termination date.
Your Material Breach. If SpotOn terminates the Terms or the Services because of Your material breach, You:
(a) agree to pay Fees for Professional Services rendered up to the effective termination date, accrued expenses You approved, and a Fee determined at SpotOn’s sole discretion for resources allocated to SOWs not yet expired or completed.
(b) remain liable for all Subscription Services and Support Fees until the Subscription Period end dates.
SpotOn Material Breach. If You terminate the Terms or the Services because of SpotOn material breach, SpotOn will refund You prepaid Fees for Services not rendered after the effective termination date.
Termination for Insolvency. Either party may immediately terminate these Terms or the Services if the other party becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, becomes subject to control of a trustee, receiver or similar authority, or becomes subject to an Insolvency Proceeding. The Subscription Services is a service, not a good, provided pro rata over the Subscription Period on a daily basis. Your use of the Services after an Insolvency Proceeding commencement is an actual, necessary cost and expense of preserving Your estate. Nothing herein limits SpotOn’s rights of offset or recoupment. SpotOn is entitled to offset or recoup the value of Services provided after You become subject to an Insolvency Proceeding against any Claim brought by or on behalf of You, including state or federal preference, fraudulent transfer, or other avoidance action.
18. LIMITED WARRANTIES AND DISCLAIMERS
Mutual Warranties. Each party represents and warrants that: (a) these Terms have been duly authorized, executed, and delivered, and constitute a valid and binding agreement enforceable against such party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of these Terms; (c) the execution, delivery, and performance of these Terms does not violate any other agreement to which it is a party or by which it is otherwise bound; and (d) it has the right to disclose its Confidential Information.
Your Warranties. You represent and warrant that: (a) You are not on the U.S.’ Specially Designated Persons (“SDN”) list and are not located in or a national resident of any country on the U.S.’ Sanctions Programs and country list; and (b) You will not conduct transactions with countries, persons or entities on OFAC’s SDN lists in violation of applicable U.S. laws.
SpotOn Warranty. SpotOn warrants that it owns or has obtained all necessary rights from its Third-Party Providers to the Services. The Services are not warranted to be totally error-free.
Limited Professional Services Warranty. If You enter into a paid transaction for Professional Services with SpotOn as evidenced by a Proof of Entitlement, SpotOn warrants that the Professional Services shall be performed in a professional and workmanlike manner with reasonable care, knowledge, experience, qualifications, resources, and skills. In the event You notify SpotOn of non-conforming Professional Services within seven (7) days of receiving the non-conforming Professional Services, and such non-conforming Professional Services do not result from Your fault or delay, SpotOn, at its discretion, as Your sole remedy, shall either (a) re-perform the non-conforming Professional Services at no additional charge, or (b) terminate the Professional Services, and refund the prepaid Professional Services not rendered.
Disclaimer of Warranties. EXCEPT FOR EXPRESS WARRANTIES PROVIDED IN THIS SECTION 18 (LIMITED WARRANTIES AND DISCLAIMERS), SPOTON MAKES NO (AND SPOTON SPECIFICALLY DISCLAIMS ALL) REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS, WARRANTIES OR CONDITIONS: (A) ARISING OUT OF ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; (B) OF: (I) SATISFACTORY QUALITY; (II) FITNESS FOR A PARTICULAR PURPOSE; (III) NON-INFRINGEMENT; OR (IV) INTEROPERABILITY WITH THIRD-PARTY PRODUCTS OR SERVICES; AND (C) THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSIONS OF IMPLIED WARRANTIES. IN SUCH AN EVENT, THE ABOVE EXCLUSIONS WILL NOT APPLY SOLELY TO THE EXTENT PROHIBITED BY LAW.
SpotOn Payroll Warranty Disclaimer. IN ADDITION TO THE DISCLAIMER OF WARRANTIES ABOVE, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, SPOTON PAYROLL IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND MADE BY SPOTON. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SPOTON DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DATA LOSS, AND NON-INFRINGEMENT. FURTHERMORE, SPOTON MAKES NO WARRANTIES REGARDING THE ACCURACY, RELIABILITY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR QUALITY OF ANY INFORMATION OR CONTENT IN OR LINKED TO SPOTON PAYROLL. SPOTON DOES NOT WARRANT THAT SPOTON PAYROLL WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS, BE COMPLETELY SECURE OR FREE FROM ERRORS, BUGS, VIRUSES, OR OTHER HARMFUL COMPONENTS, OR BE FREE FROM INTERRUPTION, THEFT, OR DESTRUCTION. If any error results, whether directly or indirectly, from SpotOn's reliance on information or modifications to information provided by You, Your account administrators, Your employees, or any other person SpotOn reasonably believes is authorized to act for You, SpotOn will attempt to correct the error, but SpotOn makes no warranty or guarantee that it will be able to partially or fully correct it.
No Legal, Financial, Regulatory, Benefits, Accounting, Tax, or Professional Advice. SpotOn designs the Services, including the functions and processes applicable to SpotOn’s performance of the Services, to assist You in complying with Applicable Laws applicable to the Services. SpotOn is responsible for the designs. You, not SpotOn or its Third-Party Providers, are responsible for (a) how You use the Services to comply with Applicable Laws, and (b) the consequences of instructions You give to SpotOn, including instructions relating to the implementation of the Services, provided that SpotOn follows such instructions. You agree (1) that SpotOn and Third-Party Providers are not acting in a fiduciary capacity in providing You the Services, (2) the Services (A) do not guarantee compliance with Applicable Laws, and (B) may not include functionality necessary to meet Your specific legal or other needs. All in-product content, Documentation, Knowledge Base articles (available at SpotOn’s support site), support materials, tooltips, reports, calculations, rate information, seeded defaults, and other information or materials made available by SpotOn or Gusto through the Services, including SpotOn Payroll, are general informational content only and are not legal, financial, regulatory, benefits, accounting, tax, human resources, or other professional advice. SpotOn and its Third-Party Providers do not provide You with, and Services do not include, legal, financial, regulatory, benefits, accounting, tax, or professional advice.
This Section 18 (LIMITED WARRANTIES AND DISCLAIMERS) survives expiration or termination of the Terms or the Services.
19. INDEMNIFICATION
Your Indemnification. You will defend, indemnify, and hold harmless SpotOn, its Affiliates, and their respective officers, Representatives, directors, successors and assigns (“SpotOn Indemnified Parties”), from and against any Claims and Losses arising out of or relating to: (a) Your, Your Affiliates’, Your Representatives’, or Outsourced Providers’ breach of these Terms; (b) Your, Your Affiliates’, Your Representatives’, or Outsourced Providers’ misappropriation or infringement of any Intellectual Property rights (to the extent such infringement or misappropriation is not the result of SpotOn’s actions); (c) Your, Your Affiliates’, Your Representatives’, or Outsourced Providers’ use of the Services in violation of Services use restrictions (including Section 7 (Acceptable Use) and Section 25 (Specific Services Terms)); (d) Your Content, Your Personal Data, and Customer Data; or (e) the acts and omissions of You, Your Affiliates’, Your Representatives’, and Outsourced Providers.
SpotOn Indemnification. If You enter into a paid transaction with SpotOn as evidenced by a Proof of Entitlement, SpotOn will defend You, Your Affiliates, and their officers, Representatives, directors, successors and assigns (“You Indemnified Parties”), against any third party Claim brought against You Indemnified Parties alleging the Services infringe or misappropriate a United States registered patent, registered trademark, copyright, or trade secret, and indemnify You Indemnified Parties from Losses finally awarded against You Indemnified Parties by a court of competent jurisdiction as a result of, or for amounts paid by You Indemnified Parties under a Claim settlement approved by SpotOn in writing. If SpotOn receives information about an infringement or misappropriation related to the Services, SpotOn may in its discretion and at no cost to You (a) modify the Services so they are no longer claimed to infringe or misappropriate, (b) obtain a license for You to continue using the Services in accordance with these Terms, or (c) terminate Your rights to the Services upon thirty (30) days’ written notice and refund You prepaid Fees for Services not rendered after the effective termination date. SpotOn shall have no indemnification obligations with respect to (1) Claims if You Indemnified Parties are in material breach of these Terms; (2) modification or alteration of the Services by anyone other than SpotOn or without SpotOn’s written approval, or (3) Claims arising out of use of the Services, or any part thereof, (A) in combination with software, technology, processes, equipment, services, or other products not supplied by SpotOn, or explicitly supported in the Documentation, if such Claims would have been avoided without such combination, or (B) not in accordance with these Terms.
Exclusive Remedy. Section 19 (Indemnification; SpotOn Indemnification) states SpotOn’s sole and exclusive remedy against, and SpotOn’s sole liability to, You for Claims under Section 19 (Indemnification; SpotOn Indemnification).
Indemnification Process. Indemnification obligations shall be subject to the party seeking indemnification (“Indemnified Party”) (a) notifying the other party (“Indemnifying Party”) in writing within ten (10) days of receiving information of any threatened or actual Claim; provided, however, the failure to give notice by the Indemnified Party shall not relieve the Indemnifying Party’s obligations except to the extent that the Indemnifying Party is prejudiced by such failure; (b) giving the Indemnifying Party exclusive control and authority over the defense or settlement of such Claim, except the Indemnifying Party shall not settle a Claim without the Indemnified Party’s consent when the settlement does not release Indemnified Party of all liability, affects a party’s Intellectual Property, Confidential Information, or Personal Data, or requires the Indemnified Party to make admissions, perform actions, or pay moneys or other legal value; (c) not entering into any settlement or compromise of any Claim without the Indemnifying Party’s prior written consent; and (d) providing reasonable assistance requested by the Indemnifying Party at Indemnifying Party’s expense.
This Section 19 (Indemnification) survives expiration or termination of the Terms or the Services.
20. LIMITATION OF LIABILITY
EXCEPT (a) DATA PROTECTION CLAIMS, (b) SECTION 19 (INDEMNIFICATION) OBLIGATIONS, (c) LIABILITY WHICH, BY APPLICABLE LAWS, CANNOT BE LIMITED (E.G., SERIOUS BODILY INJURY OR DEATH CLAIMS ARISING FROM GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT), (d) YOUR PAYMENT OBLIGATIONS (SECTION 15), (e) YOUR BREACH OF SECTION 7 (ACCEPTABLE USE), SECTION 9 (SPOTON PROPRIETARY RIGHTS), SECTION 12 (CONFIDENTIAL INFORMATION), OR SECTION 25 (SPECIFIC SERVICES TERMS), AND (f) YOUR VIOLATION OF SPOTON INTELLECTUAL PROPERTY RIGHTS (“EXCLUDED CLAIMS”), TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL EACH PARTY’S AND ITS AFFILIATES’ TOTAL AND CUMULATIVE LIABILITY, FOR ALL CLAIMS OF ANY NATURE ARISING OUT OF OR RELATED TO THESE TERMS EXCEED THE TOTAL FEES PAID BY YOU TO SPOTON FOR THE SPECIFIC SERVICES UPON WHICH THE FIRST EVENT GIVING RISE TO LIABILITY WAS BASED (“LIABILITY EVENT”) DURING THE TWELVE (12) MONTHS PRECEDING THE LIABILITY EVENT DATE (“GENERAL LIABILITY CAP”).
SpotOn Payroll Liability Cap. Notwithstanding anything to the contrary in these Terms, including the General Liability Cap and any exclusion from that cap, except to the extent liability cannot be limited under Applicable Laws, SpotOn's and its Affiliates' total and cumulative liability for all Claims arising out of or relating to SpotOn Payroll will not exceed the greater of (a) five hundred United States dollars ($500) or (b) the Fees paid by You for SpotOn Payroll during the six (6) months preceding the Claim (the “SpotOn Payroll Liability Cap”).
SpotOn Payroll Exclusions. Without limiting the SpotOn Payroll Liability Cap or any other exclusion or limitation in these Terms, SpotOn and its Third-Party Providers are not responsible or liable for any consequences or Claims related to (a) any action taken at Your request or instruction, or at the request or instruction of any person SpotOn or a Third-Party Provider reasonably believes is authorized to act for You; (b) any Resulting Error arising from reliance on information or modifications to information provided by You, Your account administrators, Your employees, or any other person authorized to act for You; (c) Your failure to timely, accurately, or satisfactorily follow instructions or to provide complete, accurate, and timely information requested to provide SpotOn Payroll; (d) Your violation or alleged violation of any Applicable Law, including labor, employment, tax, wage-and-hour, or NACHA rules; (e) unauthorized third-party actions taken on Your account; (f) Your negligence; (g) any Claim that could reasonably have been avoided or mitigated through reasonable efforts; or (h) any act, omission, error, or failure of Gusto or another Third-Party Provider, including the receipt, protection, processing, or sharing of Your information by Gusto or another Third-Party Provider.
IN NO EVENT WILL SPOTON BE LIABLE FOR YOUR COSTS TO PROCURE SUBSTITUTE GOODS OR SERVICES.
THE LIMITATIONS AND EXCLUSIONS APPLY IF THIS REMEDY DOES NOT FULLY COMPENSATE A PARTY FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL PURPOSE.
EXCEPT FOR EXCLUDED CLAIMS, IN NO EVENT WILL A PARTY BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER, LOSS OF PROFITS OR REVENUE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF GOODWILL, LOSS OR USE OF DATA (INCLUDING CUSTOMER DATA AND CUSTOMER PROCESS DATA)) HOWEVER CAUSED, WHETHER BASED IN CONTRACT, TORT, WARRANTY, NEGLIGENCE, OR OTHER LIABILITY THEORY, EVEN IF A PARTY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSIONS OF INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES. IN SUCH AN EVENT, THE ABOVE EXCLUSIONS WILL NOT APPLY SOLELY TO THE EXTENT PROHIBITED BY LAW.
IN THE CASE OF DATA PROTECTION CLAIMS, SPOTON’S AND SPOTON AFFILIATES’ TOTAL LIABILITY TO YOU AND YOUR AFFILIATES FOR ALL CLAIMS IN THE AGGREGATE (FOR LOSSES OR LIABILITY OF ANY TYPE) SHALL NOT EXCEED TWO TIMES (2X) THE GENERAL LIABILITY CAP (“DATA PROTECTION CLAIMS CAP”).
This Section 20 (LIMITATION OF LIABILITY) survives expiration or termination of the Terms or the Services.
21. GOVERNING LAW; VENUE; EQUITABLE RELIEF
Governing Law. These Terms will be construed and enforced in all respects in accordance with the laws of the State of California, U.S.A., without reference to its choice of law rules, and without regard to the United Nations Convention on the International Sale of Goods.
Venue. In the event of a Claim arising out of the Terms, the parties submit to exclusive venue in, and the exclusive jurisdiction of, federal and state courts, as applicable, located in San Francisco County, California, U.S.A., subject to Section 21 (Governing Law; Venue; Equitable Relief) on Equitable Relief.
Equitable Relief. Notwithstanding Section 21 (Governing Law; Venue; Equitable Relief) on Venue, either party may enforce a judgment, or seek equitable relief without having to prove actual damages or posting bond, from any court of competent jurisdiction.
English is the language governing these Terms.
This Section 21 (Governing Law; Venue; Equitable Relief) survives expiration or termination of the Terms or the Services.
22. ARBITRATION; CLASS ACTION WAIVER
Arbitration; Class Action Waiver. Before filing any Claim arising out of or relating to these Terms or the Services, including SpotOn Payroll, in arbitration or court, You and SpotOn will attempt in good faith to resolve the specific dispute informally by contacting SpotOn Support or Legal@spoton.com. If the dispute is not resolved within sixty (60) days after notice, the dispute will be resolved by final and binding arbitration on an individual basis under the Federal Arbitration Act, except that either party may bring an individual action in small claims court or seek injunctive or other equitable relief in a court of competent jurisdiction to protect its Intellectual Property. You may opt out of this arbitration provision by sending a written notice to Legal@spoton.com within thirty (30) days after Your electronic acceptance of these Terms or, for existing customers, within thirty (30) days after notice of a material modification to this Section 22. If You timely opt out, or if this arbitration provision is found not to apply, the exclusive jurisdiction and venue for the dispute will be the state or federal courts located in San Francisco County, California, and each party waives trial by jury. To the maximum extent permitted by Applicable Laws, neither You nor SpotOn may bring or participate in any class, collective, representative, coordinated, consolidated, or mass action or arbitration, and any such rights are expressly and unconditionally waived. Arbitration will be administered by JAMS before a single arbitrator and may be conducted remotely; the arbitration and award will be confidential except as required by law. If any portion of this arbitration provision other than the class action waiver is unenforceable, the remaining portions will remain in effect; if the class action waiver is unenforceable, this entire arbitration provision will be void.
This Section 22 (Arbitration; Class Action Waiver) survives expiration or termination of the Terms or the Services.
23. GOVERNMENT USERS
If You are a U.S. government entity or these Terms becomes subject to the Federal Acquisition Regulations, You acknowledge that elements of the Services constitute software and documentation and are provided as “Commercial Items” as defined at 48 C.F.R. 2.101, and licensed to the U.S. government as commercial computer software subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212 (or successor sections).
This Section 23 (Government Users) survives expiration or termination of the Terms or the Services.
24. MISCELLANEOUS
Publicity. You hereby consent to SpotOn using Your Identifiers in any customer or vendor lists, advertisements, websites, news or press releases, releases to professional or trade publications, or in any document that SpotOn plans to file with the Securities and Exchange Commission or other government authority.
Severability. In the event a provision of the Terms becomes or is declared by a court of competent jurisdiction to be illegal, void, or unenforceable, the remainder of the Terms continue in full force and effect and the application of such provision will be interpreted so as reasonably to effect the parties’ intent.
Force Majeure. In the event that either party is prevented from performing, or unable to perform obligations under the Terms due to a Force Majeure Event (except for Your obligations under Sections 15 (Fees; Taxes) and 16 (Billing/Payment)), the affected party’s performance will be excused and the time for performance extended for the period of delay or inability to perform due to such occurrence; provided that the affected party: (a) provides the other party prompt notice (to the extent possible) of the nature and expected duration of the Force Majeure Event; (b) uses commercially reasonable efforts to address and mitigate the cause and effect of such Force Majeure Event; (c) provides periodic notice of relevant developments; and (d) provides prompt notice of the end of such Force Majeure Event. You understand that the Services may not be provided in countries listed on the Office of Foreign Assets Control sanction list and that Your rights to Services may be restricted in such countries and such prohibitions shall not constitute a Force Majeure Event.
Integration. These Terms constitute the entire agreement between the parties and supersedes all prior agreements or communications between the parties with regard to the subject matter. Subject to Section 2 (Changes to These Terms), these Terms may not be amended or modified except by a writing signed by each party. The Terms supersedes and controls over conflicting or additional terms and conditions of any purchase order, acknowledgement, confirmation, or other document You issue. In the event of conflict, the following is the order of precedence: (a) Quote or SOW for the specific Quote or SOW only, (b) Terms, (c) SpotOn Terms and Policies.
Assignment. You will not, directly, indirectly, by operation of law or otherwise, assign or transfer all or part of these Terms or its rights or delegate performance of its duties without the prior written consent of SpotOn. Any attempted assignment or transfer by You without consent shall be void and of no effect. Either party may assign the Terms upon written notice, but without obtaining the other party’s consent: (a) to an Affiliate; or (b) in connection with a successor in interest in a merger, acquisition, reorganization, sale of all or substantially all of the assets, or other change of Control, provided however, if You assign the Terms to an assignee that SpotOn does not want to do business with, SpotOn may terminate the Terms and related Quotes and SOWs immediately with written notice. Subject to the foregoing, the Terms will be fully binding upon, inure to the benefit of, and be enforceable by, the parties and their respective permitted successors and assigns.
Third Party Beneficiaries. Nothing in these Terms shall confer, or is intended to confer, on any third party any benefit or the right to enforce these Terms.
Relationship. The parties enter into the Terms as independent contracting parties. Neither party will have, or hold itself out as having, any right or authority to incur any obligation on behalf of the other party. These Terms will not be construed to create an association, joint venture, or partnership between the parties or to impose any partnership liability upon any party.
Nonwaiver. The failure of either party to insist upon or enforce strict performance of any Terms provision or to exercise rights or remedies under the Terms will not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision, right, or remedy in that or any other instance; rather, the same will remain in full force and effect.
Compliance with Laws. SpotOn and You agree to comply with Applicable Laws, including but not limited to those relating to anti-corruption, anti-bribery (e.g. U.S. Foreign Corrupt Practices Act, as amended), and exports (including restrictions on destinations, end users, and end use, including without limitations, those of the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) and/or Department of Commerce’s Bureau of Industry and Security). Without limiting the foregoing, You are solely responsible for Your and Your Representatives', Affiliates', and Outsourced Providers' compliance with all Applicable Laws relating to Your business and use of the Services, including as set forth in Section 25 (Specific Services Terms).
Notices. Notice given by a party to any other party will be in writing and effective upon confirmed delivery as follows: (a) if to You, when sent via email or physical address specified in a Quote or otherwise on record for You; and (b) if to SpotOn, when sent via email to Legal@spoton.com or SpotOn Transact LLC, 100 California Street, 9th Floor, San Francisco, CA 94111, Attn: SpotOn Terms of Services Notices. A notice must specifically reference that it is a notice given under these Terms. Emailed notices will be considered given and received when the email is sent. You agree to accept service of process by mail.
This Section 24 (Miscellaneous) survives expiration or termination of the Terms or the Services.
25. SPECIFIC SERVICES TERMS
You agree to the following additional terms for the specific Services You purchase, use, or access:
Gusto Embedded Payroll Services.
Gusto, Inc. (“Gusto”) Embedded Payroll Service Agreement and Employer Data Processing Addendum; Condition of Access. “Embedded Payroll Service” has the meaning given in the Gusto Terms (as defined below). Before You access or use SpotOn Payroll, You must read, and by accessing or using SpotOn Payroll You acknowledge, agree to, and accept: (a) the Gusto, Inc. Embedded Payroll Service Agreement, currently located at https://flows.gusto.com/terms; and (b) Gusto's Employer Data Processing Addendum, currently located at https://gusto.com/legal/terms/employer-dpa (together, the “Gusto Terms”). SpotOn will present the Gusto Terms to You, or require You to affirmatively accept the Gusto Terms, before You are permitted to access or use SpotOn Payroll, and Your continued use of SpotOn Payroll constitutes Your ongoing acceptance of the then-current Gusto Terms. The Gusto Terms are an agreement solely between You and Gusto, and SpotOn is not a party to, and has no liability under, the Gusto Terms. You are responsible for reviewing the Gusto Terms each time Gusto updates them and for determining whether You wish to continue using SpotOn Payroll. By accessing or using SpotOn Payroll, You represent and warrant that You have read, understand, acknowledge, agree to, and accept the terms and conditions of the Gusto Terms. You agree that Your use of SpotOn Payroll is subject to and governed by the Gusto Terms in addition to these Terms, and that in the event of a conflict between these Terms and the Gusto Terms with respect to Gusto's provision of the Embedded Payroll Service, the Gusto Terms shall control.
Relationship to Gusto. You understand and agree that (a) Gusto is a separate entity from SpotOn, (b) SpotOn does not control and is not responsible for the acts, errors, or omissions of Gusto in providing the Embedded Payroll Service, and (c) Gusto's liability to You for its acts, errors, or omissions is governed solely by the Gusto Terms. You authorize SpotOn to (1) share information about You with Gusto, (2) conduct activity on Your behalf to integrate the Embedded Payroll Service into SpotOn Payroll, in each case as necessary for Gusto to provide the Embedded Payroll Service to You, and (3) restrict, suspend, or terminate Your ability to view, access, or activate the Embedded Payroll Service, including at Gusto’s direction or as permitted under Section 25 (Specific Services Terms).
Gusto Trademarks. “Gusto” and all related marks are trademarks of Gusto, Inc. or its affiliates. Nothing in these Terms or Your use of SpotOn Payroll grants You any right to use Gusto's trademarks, service marks, trade names, trade dress, or logos, and You must not use any Gusto mark in a way that suggests Gusto sponsors, endorses, or is affiliated with You, except as Gusto has separately approved in writing.
U.S. Eligibility Requirement. SpotOn Payroll and the Embedded Payroll Service are available only in the United States (excluding U.S. territories). You must have a U.S. bank account, a U.S. federal tax identification number (e.g., EIN), and a U.S. business address to use SpotOn Payroll, and SpotOn and Gusto may decline, suspend, or terminate access to SpotOn Payroll for any person or entity that does not meet these requirements.
Payment Processing Speed; Risk-Based Account Actions. SpotOn Payroll may offer more than one direct deposit payment processing speed (for example, 4-Day, 2-Day, or 1-Day Payroll). Gusto determines, in its sole discretion and based on its ongoing risk, fraud, and compliance assessment of You, whether You are eligible for a faster payment processing speed, and Gusto may increase, decrease, condition, suspend, or revoke Your eligibility for a given payment processing speed, or require You to process payroll on a slower schedule for a period of time, at any time and without liability to SpotOn or Gusto. Gusto may also refuse to provide, condition, suspend, or terminate SpotOn Payroll or the Embedded Payroll Service as to You at any time, in its sole discretion, including if Gusto determines You present a heightened risk of fraud, financial loss, or non-compliance with Applicable Laws. None of the foregoing actions will constitute a breach of these Terms or entitle You to any service credit, refund, or other remedy, except as SpotOn may otherwise expressly provide.
SpotOn Termination Following Gusto Action. If Gusto suspends or terminates Your access to the Embedded Payroll Service, or ceases to make the Embedded Payroll Service available to You, for any reason other than (a) Your breach of these Terms or the Gusto Terms, (b) fraud or suspected fraud, or (c) Gusto’s determination that You present a heightened risk of fraud, financial loss, or non-compliance with Applicable Laws, SpotOn may terminate Your access to SpotOn Payroll upon written notice to You. If SpotOn terminates under this Section 25 (Specific Services Terms; SpotOn Termination Following Gusto Action), You will not be liable for Fees for SpotOn Payroll attributable to the period after the effective date of termination, SpotOn will refund any prepaid Fees for SpotOn Payroll attributable to that period, and Section 17 (Duration; Termination) (Your Material Breach) will not apply.
Compliance with Applicable Laws Relating to Services. You agree that, as between You, SpotOn, and Third-Party Providers, You are solely and exclusively responsible for complying with all Applicable Laws relating to the Services and Your business, including federal, state, and local employment, labor, payroll, tax, wage-and-hour, and data protection laws, including but not limited to wage and hour, employee classification, minimum wage, wage deduction, meal period, rest break, regular rate of pay calculations, overtime calculations and payments, paid sick leave accrual, itemization and issuance of pay statements, tip pooling and distribution, predictive scheduling and fair workweek requirements, timing of pay (including final pay), and identity and work authorization verification (including I-9 requirements). The Services do not guarantee compliance with Applicable Laws and may not include functionality necessary to meet Your specific legal or business requirements.
Data Accuracy and Completeness. You are solely responsible for the accuracy, completeness, legality, timeliness, and appropriateness of all information and data You, Your Affiliates, Representatives, Outsourced Providers, employees, contractors, or other users provide or make available to SpotOn or any Third-Party Provider, including Gusto, in connection with the Services. You represent and warrant that You have the authority and all rights, permissions, and consents required to provide such information and data, and You must promptly correct or update it. SpotOn and Third-Party Providers may rely on such information and are not required to independently verify or correct it. You waive any Claim against the SpotOn Indemnified Parties arising out of errors or omissions in such information or data that You have not corrected, or requested SpotOn or the applicable Third-Party Provider to correct.
SpotOn Payroll-Specific and Express Labor Terms.
Time Tracking and Punch Accuracy. SpotOn Payroll may capture clock-in and clock-out data based on information You or Your employees enter or that Your devices record, including punches recorded while a device is offline and later synced. You are solely responsible for verifying the accuracy and completeness of all timekeeping data, including offline-captured and corrected punches, before relying on it for payroll purposes. SpotOn's records are a tool to assist You and are not the authoritative wage record; You are responsible for maintaining Your own payroll records as required by Applicable Laws.
Break Tracking and Break Premium Pay. Where SpotOn Payroll provides break-tracking functionality, it records breaks that You or Your employees log; it does not automatically calculate or pay premiums for missed, short, late, or interrupted meal or rest breaks. You are solely responsible for determining whether break premiums are owed under Applicable Laws and for making any required premium payments, including by using any manual-adjustment functionality SpotOn Payroll provides.
Overtime Calculation. SpotOn Payroll calculates overtime based on thresholds and multipliers You configure. Commissions, bonuses, non-discretionary incentives, tip credits, and other forms of compensation may not automatically be included in the regular rate of pay used to calculate overtime. You are solely responsible for (a) verifying that Your configured overtime thresholds and multipliers match the Applicable Laws for each of Your work locations, and (b) manually adjusting pay where SpotOn Payroll does not capture every input relevant to a correct overtime calculation.
Paid Sick Leave Calculation. SpotOn Payroll calculates paid sick leave at the base hourly rate or a fixed amount, according to the rules You configure. If Applicable Laws in Your jurisdiction require paid sick leave to be paid at a rate higher than the base hourly rate, or require a different pay rate, usage increment, or accrual method than You have configured, You are solely responsible for making any required manual adjustment to pay.
Tip Pooling and Distribution. Where SpotOn Payroll supports tip pooling, You are solely responsible for determining the lawful composition of any tip pool, including which job classifications may participate, and for ensuring that tip pooling and distribution comply with Applicable Laws, including any applicable tip-credit rules. Any estimated tip distribution SpotOn Payroll surfaces to You or Your employees is provided merely as a convenience, is exclusive of taxes and other withholdings, and is not a guarantee of the amount any employee will actually receive. SpotOn does not warrant that any tip pool or distribution calculation satisfies U.S. Department of Labor or state requirements.
Minimum Wage Configuration. SpotOn may pre-populate SpotOn Payroll with state or local minimum wage rates for use in tip-credit makeup, overtime, and related calculations, as a convenience only. You are solely responsible for verifying that any rate populated by SpotOn, or configured by You, is correct and currently applicable to each of Your business locations, and for updating the rate when Applicable Laws change. SpotOn is not obligated to maintain any specific rate as current or accurate.
Payroll Reports; Accuracy of Payroll Information. SpotOn Payroll may produce payroll reports or data for consumption by a third-party payroll processor, including Gusto. You are solely responsible for reviewing and verifying any such report or data before it is transmitted or acted upon, and for making any necessary corrections.
Scheduling and Shift Enforcement. Where SpotOn Payroll provides schedule publication, shift-change, or related scheduling tools, You are solely responsible for compliance with any predictive scheduling, fair workweek, or similar Applicable Laws in Your jurisdictions, including required notice periods, predictability pay, and recordkeeping. SpotOn's scheduling tools assist You in managing schedules; they are not a certification of Your compliance with Applicable Laws.
Employee Self-Service; Estimated Pay Disclaimer; No Employment Relationship. Where SpotOn Payroll provides Your employees with self-service access to timecards, schedules, estimated wages, pay statements, direct deposit information, or tax documents (each, an “Employee User”): (a) SpotOn provides this access on Your behalf and at Your instruction, and Your discretion governs each Employee User's access; (b) any estimated pay or estimated tip distribution shown to an Employee User is provided merely as a convenience and is not a promise, guarantee, or representation of the amount actually payable; (c) use of SpotOn Payroll by an Employee User does not create any employment, joint employment, independent contractor, or other relationship between the Employee User and SpotOn, and You remain solely responsible for the accurate calculation and disbursement of wages; (d) Your responsibility for obtaining consents from Employee Users is set forth below under Data Protection Flow-Down; (e) estimated tax withholdings reflect information the Employee User supplies (including Form W-4 information), and the Employee User is responsible for keeping that information current; and (f) following termination of an Employee User's employment with You, that Employee User's access to historical timecards, pay statements, and tax documents through SpotOn Payroll will be governed by SpotOn's then-current data retention policy, and SpotOn reserves the right to remove such data in its discretion.
Employee and Contractor Information Requests. You agree to timely provide any current or former Employee User with their personal payroll information upon request, directly or through Gusto. If a current or former Employee User requests their personal payroll information (for example, a copy of pay stubs or timecards) directly from SpotOn or Gusto, SpotOn or Gusto may, in its sole discretion, fulfill that request (to the extent the information has been retained consistent with SpotOn's or Gusto's data retention policy) without further notice to You.
I-9 Verification and Work Authorization. You are fully responsible for verifying the identity and work authorization of every person paid through SpotOn Payroll, including completing and retaining Form I-9 and any required federal, state, or local verification, in accordance with federal, state, and local law. SpotOn does not perform, and SpotOn Payroll does not include, Form I-9 verification, and neither SpotOn nor Gusto verifies the identity or work authorization of any employee or independent contractor paid through the Services.
No Legal, Tax, Accounting, or Payroll Advice. See Section 18 (Limited Warranties and Disclaimers) (No Legal, Financial, Regulatory, Benefits, Accounting, Tax, or Professional Advice), which applies to SpotOn Payroll and to all content made available by SpotOn or Gusto.
Reporting Agent; IRS Form 8655. You appoint Gusto as Your reporting agent for payroll tax reporting and filing, including through IRS Form 8655, as set forth in the Gusto Terms. SpotOn does not act as Your reporting agent and does not file tax returns or make tax payments on Your behalf. You authorize SpotOn to transmit payroll, tax, and related information to Gusto as necessary for Gusto to perform these functions. You must timely complete, execute, and deliver IRS Form 8655 and all other forms, authorizations, and information required by Gusto or a tax agency. You authorize Gusto to rely on such appointment and authorizations until You provide written notice revoking them in a manner sufficient to allow Gusto and Your bank reasonable opportunity to act on that notice. This appointment does not transfer to SpotOn or any Third-Party Provider Your responsibility for the accuracy, completeness, or timeliness of payroll or tax information or for compliance with Applicable Laws.
Tax Filing Responsibility. You remain solely responsible to each applicable tax authority for the timely and accurate filing of all tax returns and payment of all taxes, even when Gusto files returns or makes payments on Your behalf. You are responsible for reviewing all reports, filings, notices, and other materials, promptly notifying SpotOn and the applicable provider of any error or notice, and bearing all audits, assessments, penalties, interest, and other consequences arising from inaccurate, incomplete, outdated, or untimely information or from Your failure to review, correct, or mitigate. Any copy of a tax filing or return SpotOn or a Third-Party Provider makes available to You is provided for Your records only and does not guarantee that the filing or return was actually submitted to, or accepted by, the applicable tax authority. SpotOn recommends that You enroll in the U.S. Treasury Department's Electronic Federal Tax Payment System (EFTPS) at https://www.eftps.gov, and any applicable state tax authority's equivalent system, to independently monitor and verify that Your tax payments are being timely made.
ACH Authorization; Bank Account Funding. By submitting, approving, or authorizing any payroll or other payment through SpotOn Payroll, You authorize Gusto and its financial institutions, ACH operators, payment processors, and banking partners, to debit and credit Your designated bank account(s) by ACH or other permitted electronic means in amounts necessary to fund payroll, direct deposits, payroll taxes, garnishments, corrections, reversals, returned or unpaid funds, and other amounts due in connection with the Embedded Payroll Service, in accordance with the Gusto Terms. SpotOn does not debit, credit, or otherwise move payroll funds on Your behalf. You separately authorize SpotOn and its financial institutions and payment processors to initiate ACH debits or credits to Your designated bank account(s) solely to recover Credit/Fraud Losses and other amounts You owe SpotOn in connection with returned, reversed, or unpaid payroll funding or fraudulent or unauthorized transactions. SpotOn's right to charge Fees for its own Services is governed by Section 16 (Billing/Payment) and is not expanded by this paragraph. This authorization remains in effect until You provide written notice of termination and Gusto, SpotOn, and the applicable banks have had a reasonable opportunity to act on that notice. You represent and warrant that You are authorized to provide this authorization and that the account is an eligible U.S. business bank account.
Online Pay Statements. If You instruct SpotOn to provide online pay statements (or other similar local forms) without physical copies thereof, You will be exclusively responsible for determining if and to what extent Your use of online pay statements (or other similar local forms) satisfies Your obligations under Applicable Laws and the consequences resulting from such determinations.
Acceptable Use. Except as otherwise expressly authorized herein, You shall not (and shall use commercially reasonable efforts to detect and prevent any of the following from being undertaken by Your Representatives, Affiliates, Outsourced Providers): (a) make Services available on a “white label,” “gray label,” or “private label” basis; (b) access or use Services in a manner that could damage, disable, overburden, or impair its functionality.
Additional SpotOn Payroll Indemnification. You will be solely responsible for and shall indemnify, defend, and hold harmless SpotOn Indemnified Parties from and against all Claims and Losses to the extent arising out of or relating to: (a) payroll submission by You without sufficient funds at the time of debit, or payroll submission by You where funds are debited successfully but later reversed because of a dispute (such Losses, “Credit Losses”); (b) fraudulent transactions, unauthorized use, or criminal activity undertaken through or in connection with Your accounts (such Losses, “Fraud Losses,” and Credit Losses and Fraud Losses, collectively, “Credit/Fraud Losses”); (c) Your violation or alleged violation of any Applicable Laws, including wage and hour, tax, employment, and NACHA rules; (d) Your violation of any third party's rights, including rights of privacy or publicity; (e) Your gross negligence, fraudulent activity, or willful misconduct; (f) Your failure to timely, accurately, or satisfactorily follow SpotOn's or Gusto's instructions, or to provide information requested, in connection with SpotOn Payroll; (g) reliance by SpotOn, Gusto, or their respective Third-Party Providers on information You, Your Representatives, or Your employees provided; (h) inaccurate, incomplete, outdated, misleading, or unauthorized information or data supplied or made available by You, Your Affiliates, Representatives, Outsourced Providers, employees, contractors, or other users, including payroll, tax, banking, employment, timekeeping, wage, and worker information; (i) Your or their failure to review, correct, update, or timely transmit such information or reports, including any related filing penalties, interest, fees, costs, and liabilities; (j) Your failure to timely respond to a request from a current or former Employee User for personal payroll information as described under Employee and Contractor Information Requests above; and (k) Your failure to obtain the consents from Your employees and other data subjects described under Data Protection Flow-Down below. Without limiting the foregoing, to the extent SpotOn or a Third-Party Provider is unable to collect Credit/Fraud Losses or Losses arising from the information or conduct described above within 90 days after the act or omission that resulted in, enabled, or otherwise led to such Losses, SpotOn will invoice You for the amount of such Losses and You will promptly (and no later than 15 days after receipt of such invoice) reimburse SpotOn for such Losses. The Indemnification Process in Section 19 (Indemnification) applies to Your obligations under this paragraph.
Limitation of SpotOn's Liability for SpotOn Payroll. See Section 20 (Limitation of Liability) for the SpotOn Payroll Liability Cap and SpotOn Payroll Exclusions, which govern SpotOn's total liability for Claims arising out of or relating to SpotOn Payroll and the Embedded Payroll Service. You acknowledge and agree that: (a) the limitations, exclusions, and disclaimers set forth in the Gusto Terms (including the Gusto Terms' limitation of Gusto's liability) apply to any Claim relating to the Embedded Payroll Service, whether such Claim is brought against Gusto or against SpotOn; and (b) You waive any right to recover from SpotOn, whether under these Terms, in tort, or otherwise, any amount greater than the amount You would have been entitled to recover directly from Gusto under the Gusto Terms had You brought the Claim directly against Gusto. If You bring a Claim against SpotOn that relates to or arises from the Embedded Payroll Service, You will promptly notify SpotOn, and, at SpotOn's request and expense, cooperate with SpotOn to join Gusto as a necessary party, assign to Gusto (or permit SpotOn to assign to Gusto) the right to defend the Claim to the extent it relates to the Embedded Payroll Service, and take other reasonable actions SpotOn requests to direct the Claim to Gusto in accordance with the Gusto Terms.
Sufficient Funds; Payment Remedies. You must maintain sufficient immediately available funds in Your designated bank account(s) to cover all payroll, tax, garnishment, fee, correction, reversal, and other amounts due when required, including no later than the close of business on the day before an ACH debit. You are solely responsible and liable for all losses, Claims, fees, and costs arising from insufficient funds, failed or returned debits, reversed debits, returned payments, or fraudulent transactions. If any debit fails or is returned, funds are insufficient, a debit is reversed, or SpotOn or a Third-Party Provider suffers a loss or reasonably suspects misrepresentation or fraud, SpotOn and its Third-Party Providers may cancel, refuse, delay, or reverse payments; suspend or terminate access; charge fees, penalties, or finance charges; recover all amounts lost and collection costs from You; set off amounts owed against any funds or credits held for You; report the event to tax or financial institutions; and pursue any other remedy permitted by Applicable Laws. SpotOn and its Third-Party Providers will not be liable for resulting consequences, including unremitted or untimely payroll taxes or wage payments, and Your payment and reimbursement obligations survive termination.
Security Guidelines for Payroll-Enabled Accounts. Without limiting SpotOn's rights under Security and Privacy above, SpotOn may designate security practices (such as multi-factor authentication) as required for any account with authority to submit or approve payroll debits.
Data Protection Flow-Down. You will maintain administrative, technical, and physical safeguards for Customer Data used in connection with SpotOn Payroll consistent with Section 5 (Security and Privacy), and will promptly notify SpotOn if You detect or suspect a security incident affecting payroll or employee data. You represent and warrant that You have obtained all consents from Your employees and other data subjects necessary for SpotOn and Gusto to collect, process, and share their data as contemplated by these Terms and the Gusto Terms.
Employee-Facing Terms. If applicable, before any Employee User first accesses SpotOn Payroll's employee-facing features, You will ensure that the Employee User is presented with, and accepts, SpotOn's then-current employee-facing terms governing that access. You are responsible for ensuring Your employees' compliance with those terms.
Section 25 (Specific Services Terms) shall control in the event of conflict for the specific Services.
