Last Update: August 1, 2023
These terms of service (the “Terms of Service”, together with the online Sign-Up Form the “Agreement”) form an agreement between the person or entity indicated on the Sign-Up Form accessing, downloading, installing, or otherwise using (the terms “use” and “using” will refer to any of the foregoing) the Wagepoint Services (such entity, the “Customer”) and Wagepoint. This Agreement sets forth the terms and conditions that govern the provision and use of the Wagepoint Services and is entered into on the earlier of the date that Customer (a) first uses any part of the Wagepoint Services or (b) agrees to be bound by this Agreement (the “Effective Date”). Each of Wagepoint and Customer shall individually be referred to as a “Party” and jointly as the “Parties”.
The “Wagepoint Services” means: (i) Wagepoint’s payroll and tax processing software-as-a-service; and (ii) any component or Modification thereof. “Wagepoint” refers to Wagepoint Holdings Inc., Wagepoint Holdings USA Inc., or a Wagepoint affiliate, as applicable.
(a) Provisioning of the Wagepoint Services. Subject to Customer’s and its Permitted Users’ compliance with this Agreement, Wagepoint will make the Wagepoint Services available to Customer and Permitted Users on the terms and conditions set out in this Agreement during the Term following Wagepoint’s approval of the Customer. Wagepoint reserves the right to not accept at prospective Customer at its discretion.
(b) Permitted Purpose. Customer and Customer’s Permitted Users may access and use the Wagepoint Services solely for Customer’s business purposes and as permitted in this Agreement.
(c) Restrictions on Use. Customer will not itself, and will not permit others to:
(i) sub-license, sell, rent, lend, lease or distribute the Wagepoint Services or any Intellectual Property Rights therein, or otherwise make the Wagepoint Services available to others other than Permitted Users;
(ii) use the Wagepoint Services to permit timesharing, service bureau use or commercially exploit the Wagepoint Services;
(iii) use or access the Wagepoint Services:
(A) in violation of any applicable law;
(B) in a manner that threatens the security or functionality of the Wagepoint Services; or
(C) for any purpose or in any manner not expressly permitted in this Agreement;
(iv) use the Wagepoint Services to create, collect, transmit, store, use or process any Customer Data:
(A) that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
(B) that Customer does not have the lawful right to create, collect, transmit, store, use or process;
(C) that contains any offensive, profane, fraudulent, or immoral content; or
(D) that infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity);
(v) Modify the Wagepoint Services;
(vi) reverse engineer, decompile or disassemble the Wagepoint Services;
(vii) remove or obscure any proprietary notices or labels on the Wagepoint Services, including brand, copyright, trademark and patent or patent pending notices;
(viii) access or use the Wagepoint Services for the purpose of building a similar or competitive product or service;
(ix) access or use the Wagepoint Services for the purpose of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes;
(x) access or use the Wagepoint Services in a way intended to improperly avoid incurring fees or exceeding usage limits or quotas; or
(xi) perform any vulnerability, penetration or similar testing of the Wagepoint Services.
(d) Restricted Countries and Entities. Customer represents and warrants that it has not been listed on any U.S. or Canadian government list of prohibited or restricted parties. Customer may access and use the Wagepoint Services only in Canada and the United States. Customer represents and warrants that it is not located in any country that is subject to a U.S. or Canadian government embargo or designated by the U.S. or Canadian government as a “terrorist supporting” country.
(e) Customer’s Responsibility for Permitted Users. Customer is responsible for identifying and authenticating all Permitted Users, for ensuring only Permitted Users access and use the Wagepoint Services, and for Permitted Users’ compliance with this Agreement.
(f) Customer’s Responsibility for Accuracy and Completeness.
(i) Customer is responsible for reviewing all withdrawals, direct deposits, paychecks and reports prepared by Wagepoint for completeness, validity and accuracy according to Customer’s records.
(ii) Customer is responsible for providing accurate account numbers, remittance frequency, and all other information required by Wagepoint. Customer is responsible for immediately providing updated Customer Data in the event any Customer Data changes.
(iii) Customer agrees to notify Wagepoint immediately of any discrepancies promptly after receipt of any reports and payroll information from Wagepoint.
(g) Suspension of Access; Scheduled Downtime; Modifications. Wagepoint may, from time to time and in its discretion, without limiting any of its other rights or remedies at law or in equity, under this Agreement:
(i) suspend Customer’s access to or use of the Wagepoint Services or any component thereof:
(A) for scheduled maintenance;
(B) to make Modifications to the Wagepoint Services;
(C) due to a Force Majeure;
(D) if Wagepoint believes in good faith that Customer or any Permitted User has violated any provision of this Agreement;
(E) to address any emergency security concerns;
(F) for non-payment of invoices and Fees;
(G) if required to do so by a regulatory body or as a result of a change in applicable law; or
(H) for any other reason as provided in this Agreement.
(ii) make any Modifications to the Wagepoint Services.
Any such suspension or reasonable Modification will not be considered a beach of this Agreement by Wagepoint.
(h) Subcontracting. Wagepoint may engage third parties to assist it in providing the Wagepoint Services or any part thereof.
(i) Third-Party Products. the Wagepoint Services may permit access to products, content, services, information, websites, or other materials that are owned by third parties and are incorporated into or accessible through the Wagepoint Services (“Third-Party Products”). For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions presented to Customer for acceptance within the Wagepoint Services by website link or otherwise. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install, access, or use such Third-Party Products.
(j) Competitors: Wagepoint’s direct competitors (as determined by Wagepoint in its sole discretion) are prohibited from accessing the Wagepoint Services, except with Wagepoint’s prior written consent.
(a) Accounts. In order for Customer to access and use the Wagepoint Services on behalf of Customer, Wagepoint will issue an administrator account (the “Administrator Account”). The Administrator Account provides Customer with the capability to create user accounts (each, a “Customer User Account”) for each user that Customer wishes to have access to and use of the Wagepoint Services (each user a “Permitted User”). For clarity, a Permitted User includes the administrator of the Administrator Account, Customer’s employees, Customer’s independent contractors.
(b) Permitted User Access. Customer will ensure that Permitted Users only use the Wagepoint Services through the Customer User Account. Customer will not allow any Permitted User to share the Customer User Account, including its password and username, with any other person. Customer will promptly notify Wagepoint of any actual or suspected unauthorized use of the Wagepoint Services. Wagepoint reserves the right to suspend, deactivate, or replace the Customer User Account if it determines that the Customer User Account may have been used for an unauthorized purpose.
(c) Responsibility for Permitted Users. Customer will ensure that all individual users of the Wagepoint Services, including Permitted Users, are contractually bound to terms and conditions with Customer that are no less restrictive or protective of Wagepoint’s rights than those set forth in this Agreement. Customer is responsible for removing any Permitted User from Customer’s account in the event such individual ceases to be a Permitted User, and remains liable for all actions of such individual on the Wagepoint Services until Customer removes them as a Permitted User.
(a) Customer Data. As between Wagepoint and Customer, Customer retains all ownership and Intellectual Property Rights in and to Customer Data. Customer grants to Wagepoint a nonexclusive, worldwide, royalty-free, irrevocable, sublicensable, and fully paid-up right to access, collect, use, process, store, disclose and transmit Customer Data to:
(i) provide the Wagepoint Services;
(ii) improve and enhance the Wagepoint Services and its other offerings; and
(iii) produce and/or generate data, information, or other materials that are anonymized and not identified as relating to a particular individual or company (such data, information and materials, the “Aggregated Data”).
Wagepoint may use, process, store, disclose and transmit the Aggregated Data for any purpose and without restriction or obligation to Customer of any kind. As between Wagepoint and Customer, all right, title, and interest in Aggregated Data, and all Intellectual Property Rights therein, belong to and are retained solely by Wagepoint.
(b) Wagepoint Intellectual Property. Wagepoint or its licensors retain all ownership and Intellectual Property Rights in and to:
(i) the Wagepoint Services;
(ii) anything developed or delivered by or on behalf of Wagepoint under this Agreement;
(iii) all other Wagepoint Confidential Information, including but not limited to, any reports generated from the Wagepoint Services or any Aggregated Data; and
(iv) any Modifications to the foregoing (i), (ii) and (iii) (collectively “Wagepoint Property”).
(c) Feedback. Customer grants to Wagepoint and it’s affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Wagepoint Services, any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Permitted Users relating to the operation of the Wagepoint Services or any of Wagepoint’s other services or its affiliates’ services (“Feedback”). Nothing in this Agreement will restrict our right to use, profit from, disclose, publish or otherwise exploit any Feedback, without compensation to the Customer or Permitted Users and without any obligation to the Customer or any Permitted User. Wagepoint is not obligated to use any Feedback.
(d) Reservation of Rights. All rights not expressly granted by Wagepoint to Customer under this Agreement are reserved.
(a) Fees Fees for the use Wagepoint Services are identified on the Website (“Fees”). Except as otherwise specified between the Parties in writing: (i) Fees are payable in arrears on a monthly basis; (ii) Fees paid are non-refundable; and (iii) Fees include both a monthly base fee and a variable usage fee depending on the on Customer’s use of the Wagepoint Services. For the purpose of clarity, Fees do not include the Payroll Funds (as defined below). If Customer’s use of the Wagepoint Services exceeds industry standard service capacity or otherwise requires the payment of additional fees pursuant to the terms of this Agreement, the Customer will be billed for such usage and Customer will pay the additional fees in accordance with this Agreement.
(b) Changes to the Fees. Wagepoint reserves the right to change the Fees upon providing not less than 30 days prior notice to Customer.
(c) Payment Methods. If Customer is required to pay Fees under this Agreement, Customer must provide a valid method of payment upon Customer User Account creation. Customer agrees and acknowledges that Wagepoint may bill Customer’s payment method on a monthly basis, and in accordance with the terms of the payment method.
(d) Taxes. The Fees set out in this Agreement do not include applicable sales, use, gross receipts, value-added, excise, personal property or other taxes. Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement other than taxes based on the net income or profits of Wagepoint.
(e) Suspension. Any suspension of the Wagepoint Services by Wagepoint pursuant to the terms of this Agreement will not excuse Customer from its obligation to make payments under this Agreement.
(f) Late Payment. Customer may not withhold or setoff any amounts due under this Agreement. Wagepoint reserves the right to suspend the Customer’s access to the Wagepoint Services until all due and undisputed amounts are paid in full. Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid.
(a) Payroll Account. Customer will provide to the account designated by Wagepoint (the “Payroll Account”) an amount equal to the payments in respect of wages to Customer’s employees, statutory remittances, and other third party payments as agreed to by Customer and Wagepoint for a particular payroll (the “Payroll Funds”). Wagepoint will make commercially reasonable efforts to withdraw the Payroll Funds on the day which is three (3) banking days prior to the pay date or on such other days as the Parties agreed to in writing in accordance with pre-authorized payment services agreement. Failure to ensure good and sufficient funds have been made available will result in Customer’s employees not being paid on time. CUSTOMER ACKNOWLEDGES AND AGREES THAT WAGEPOINT SHALL BEAR NO RESPONSIBILITY FOR ANY SUCH DELAYS.
(b) Insufficient Funds. Customer acknowledges that, if Payroll Funds are returned for insufficient funds, Customer may forfeit all future direct deposit or pre-authorized payment service privileges with Wagepoint. In the event that Wagepoint receives an insufficient funds notice from the bank related to Customer’s account, and all or some the Payroll Funds have already been delivered to Customer’s payees, Customer agrees that Wagepoint may, at its sole discretion: (i) offset any of Payroll Funds already held by Wagepoint for other purposes (for example, for remittances and statutory deductions) against any unrecovered insufficient funds; and (ii) request the reversal of such deposits from the payees’ accounts. Wagepoint reserves the right to seek all available remedies at law and in equity against Customer and against Customer’s employees in order to recover any such funds. Customer has obtained all required consents from its payees for such recovery initiatives.
(c) Service Fees. During any period in which Customer is utilizing pre-authorized payment services for both the Payroll Funds and the Fees, Customer hereby agrees to sign an authorization in favour of Wagepoint to debit Customer’s bank account for all amounts owing to Wagepoint for service fees and applicable taxes. Customer agrees to maintain sufficient funds in its bank account within the deadline established by Wagepoint to satisfy the collection of Payroll Funds and Fees. Wagepoint will exercise all reasonable efforts to forward a statement of account to support any debit against Customer’s account in advance of any scheduled payroll disbursements.
(d) Know Your Client. Customer agrees and acknowledges that Wagepoint may need to comply with “know your customer”, anti-money laundering, and similar obligations to prevent money laundering and fraudulent activities. Customer hereby agrees to provide Wagepoint with such information and documentation reasonably requested by Wagepoint to allow Wagepoint to comply with these obligations and its internal processes. Customer further consents Wagepoint conducting credit investigations from time to time at Wagepoint’s discretion, including such requests for and exchange of information to and from consumer reporting agencies or credit grantors as it may require to approve and maintain funding arrangements to be granted by Wagepoint in relation to the Wagepoint Services and to provide payment history information to such agencies.
(e) Payroll Funds. The principal amount of the Payroll Funds received from Customer in the Payroll Account will at all times be held by Wagepoint or a third party appointed by Wagepoint, and references to Wagepoint in these Terms of Service include any such third party. Wagepoint may commingle Customer Payroll Funds with the Payroll Funds of other clients of Wagepoint or other Wagepoint-administered funds of a similar type. Payroll Funds will be processed by way of direct deposits. Wagepoint shall not be obliged to release any payroll documents or to make or honour any Payroll Funds until it has received confirmation that Customer financial institution upon which the Payroll Funds have been drawn has irrevocably honoured such request for advance of funds. CUSTOMER AGREES TO IMMEDIATELY NOTIFY WAGEPOINT OF ANY DETERIORATION IN ITS FINANCIAL CONDITION THAT WOULD LIKELY JEOPARDIZE ITS ABILITY TO PROVIDE CLEARED PAYROLL FUNDS TO WAGEPOINT.
(f) Investment of Payroll Funds. Customer acknowledges that Wagepoint is entitled to invest Payroll Funds held in the Payroll Account in accordance with the investment guidelines established from time to time by Wagepoint, and that Wagepoint, in its own capacity and not as trustee, is entitled as income beneficiary to all income and gains derived or realized from such investments and is not accountable to Customer, Customer’s employees, or any other person for such income or gains. ALL AMOUNTS EARNED ON SUCH PAYROLL FUNDS WHILE HELD BY WAGEPOINT WILL BE FOR THE SOLE ACCOUNT OF WAGEPOINT. Wagepoint is entitled to pledge such investments for borrowings to facilitate the Payroll Funds, rather than converting the investments into cash. Wagepoint shall indemnify and save Customer harmless from and against any loss of any portion of the principal amount of the Payroll Funds (including any losses of principal resulting from the investment of the Payroll Funds) caused by Wagepoint to the extent such Payroll Funds were actually and irrevocably received in the Payroll Account.
(g) Filing of year-end T4, T4A, and RL1 tax forms. Customer acknowledges and agrees that as part of the provision of the Wagepoint Services in Canada, Wagepoint will prepare and submit year-end T4, T4A, and RL1 tax forms (“Year End Tax Forms”). Customer consents to authorize Wagepoint to submit Year End Tax Forms on behalf of Customer. Wagepoint will not be responsible for submitting Year End Tax Forms if: (i) Customer has togged the “Auto submit tax forms” option to “No” in the application settings, (ii) Customer has not processed a payroll with the Wagepoint Services during the applicable calendar year; or (iii) if Customer has an outstanding balance with Wagepoint for any reason.
(a) Definitions. For the purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” of the Discloser means any and all information of the Discloser or any of its licensors that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into this Agreement, including information concerning the Discloser’s past, present or future suppliers, technology or business, and where the Discloser is Customer includes Customer Data; provided that the Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by the Recipient without access to the Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of the Recipient; or (iii) information received by the Recipient from a third party who was free to disclose it without confidentiality obligations.
(b) Confidentiality Covenants. The Recipient hereby agrees that during the Term and at all times thereafter it will not, except to exercise its license rights or perform its obligations under this Agreement:
(i) disclose Confidential Information of the Discloser to any person, except to:
(A) in the case of Customer to its own employee having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writings;
(B) in the case of Wagepoint to its employees, consultants, contractors, subcontractors, agents or affiliates, having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement; or
(C) to such other recipients as the Discloser may approve in writing;
(ii) use Confidential Information of the Discloser; or
(iii) alter or remove from any Confidential Information of the Discloser any proprietary legend.
Each Party will take industry standard precautions to safeguard the other Party’s Confidential Information, which will in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.
(c) Exceptions to Confidentiality. Notwithstanding Section 7(b), the Recipient may disclose the Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; and (ii) to its legal counsel and other professional advisors, if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business. In addition to the foregoing, Wagepoint may disclose Customer’s Confidential Information: (i) to an investor, purchaser, or potential purchaser of all or substantially all of the assets or entities that comprise an identifiable segment, portion, division or unit of a business provided such purchaser enters into a confidentiality agreement with Wagepoint prior to being provided any Confidential Information; and (ii) for the purposes of fraud mitigation, legal enforcement, and anti-money laundering initiatives.
(d) Return of Confidential Information. Upon the termination or expiration of this Agreement, each Party will promptly return to the other Party or destroy all Confidential Information (excluding any Customer Data which is addressed at Section 11(d) below) of the other Party in its possession or control within a reasonable amount of time, in accordance with the Recipient’s data destruction practices. Notwithstanding the foregoing, Wagepoint may retain any electronically archived Customer’s Confidential Information, provided that such retained information remains subject to the confidentiality obligations in this Agreement.
(a) Customer Warranty. Customer represents and warrants to and covenants with Wagepoint that the Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures (including to each Permitted User), obtained all applicable third party consents and permissions, and otherwise has all authority, in each case as required by applicable laws, to enable Wagepoint to provide the Wagepoint Services, including with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Information, including by or to Wagepoint and to or from all applicable third parties.
(b) NO PROFESSIONAL ADVICE.
(i) Customer acknowledges and agrees that Wagepoint does not provide professional human resources, employment law, tax opinions or tax management advice to Customer’s and that Customer’s use of the Wagepoint Services does not create any fiduciary obligations between Wagepoint and the Customer. Wagepoint depends on third parties, including government agencies and subcontractors, to provide and update the Wagepoint Services.
(ii) CUSTOMER ACKNOWLEDGES AND AGREES THAT IT USES AND RELIES UPON THE WAGEPOINT SERVICES AT ITS OWN RISK AND ACKNOWLEDGES THAT WAGEPOINT CANNOT GUARANTEE THAT ANY DATA OR OTHER INFORMATION CONTAINED IN THE WAGEPOINT SERVICES IS ACCURATE OR CURRENT.
(iii) Customer acknowledges and agrees that it will receive, review and be the contact for all correspondence and all other communications with the relevant government, regulatory, and taxing authorities. Upon Customer’s consent, Wagepoint may from time to time be authorized to discuss matters relating to the remittance of Customer source deductions with such authorities.
(iv) Customer acknowledges and agrees that it is responsible for all output generated by the Wagepoint Services and will confirm its accuracy on a regular basis. Customer will conduct its own due diligence and engage qualified professionals for all matters requiring professional advice, such as tax counsel or accountants. Customer is responsible for monitoring legal developments specifically applicable to it, interpreting applicable laws and regulations, determining the requirements for compliance with such laws and regulations, and identifying any changes required to its processes and policies.
(c) GENERAL DISCLAIMER.
(i) WAGEPOINT DOES NOT WARRANT THAT WAGEPOINT SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF WAGEPOINT SERVICES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, WAGEPOINT SERVICES (OR ANY PART THEREOF) AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY WAGEPOINT TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE”.
(ii) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WAGEPOINT HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, WAGEPOINT EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF WAGEPOINT SERVICES (OR ANY PART THEREOF), IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
(iii) NO METHOD OF ELECTRONIC STORAGE OR TRANSMISSION OVER THE INTERNET IS PERFECTLY SECURE; WAGEPOINT DOES NOT MAKE ANY GUARANTEES OR WARRANTIES RELATED TO THE SECURITY OR INTEGRITY OF ANY CUSTOMER DATA PROVIDED TO WAGEPOINT.
(a) Wagepoint’s Indemnity.
(i) Wagepoint will indemnify, defend, and hold harmless the Customer and its officers, directors, employees, and agents (each, a “Customer Indemnitee”) from and against any and all Losses incurred by a Customer Indemnitee arising out of or relating to any claim, action, demand, inquiry, audit, proceeding, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise (collectively, an “Action”) by a third party (other than an affiliate or a Customer Indemnitee) that arise from or relate to any allegation that the Wagepoint Services infringe any third-party Intellectual Property Right in Canada or the United States. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any: (A) incorporation of any component of the Wagepoint Services into, or any combination, operation, or use of any the Wagepoint Services component with, any products or services not provided or authorized by Wagepoint, unless such infringement would also have resulted solely from the use of the Wagepoint Services without their incorporation in, or combination, operation or use, with such other products or services; (B) Modification of the Wagepoint Services other than by Wagepoint or with Wagepoint’s express written approval; (C) unauthorized use of the Wagepoint Services; or (D) Customer’s indemnity in Section 9(b).
(ii) If the Wagepoint Services are, or in Wagepoint’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if the Customer’s use of the Wagepoint Services is enjoined or threatened to be enjoined, Wagepoint may, at its option and sole cost and expense:
(A) obtain the right for the Customer to continue to use the affected the Wagepoint Services materially as contemplated by this Agreement;
(B) Modify or replace the Wagepoint Services, in whole or in part, to seek to make the Wagepoint Services (as so modified or replaced) non-infringing while providing materially equivalent features and functionality, in which case such Modifications or replacements will constitute the Wagepoint Services under this Agreement; or
(C) if Wagepoint determines that neither of the foregoing two options are reasonably available, by written notice to the Customer, terminate the Wagepoint Services, in whole or in part, and require the Customer to immediately cease all use of the terminated the Wagepoint Services or part or feature thereof and refund any unused prepaid Fees for the terminated the Wagepoint Services, if applicable.
This Section 9(a) states the Wagepoint’s sole liability to, and the Customer Indemnitees exclusive remedy against, Wagepoint for any third party claim described in this section.
(b) Customer Indemnity The Customer will defend, indemnify and hold harmless Wagepoint, and its officers, directors, employees and agents (each, a “Wagepoint Indemnitee”) from and against any and all Losses incurred by a Wagepoint Indemnitee that arise from or relate to: (i) Customer Data; (ii) Customer’s breach of any of Customer’s obligations, representations, warranties or covenants under this Agreement; (iii) unauthorized use of the Wagepoint Services by the Customer or any Permitted User; (iv) use of the Wagepoint Services (or any part thereof) by Customer or any Permitted User in combination with any third party software, application or service; (v) any use of the Wagepoint Services by a Permitted User. Customer will fully cooperate with Wagepoint in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of Wagepoint.
(c) Indemnification Procedure. Each Party will promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to this Section 9. The Party seeking indemnification (the “Indemnitee”) will cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor will promptly take control of the defense and investigation of such Action and will employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 9(c) will not relieve the Indemnitor of its indemnity obligations under this Section 9 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
(a) AMOUNT. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF WAGEPOINT IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER FOR WAGEPOINT SERVICES IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL WAGEPOINT’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
(b) TYPE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL WAGEPOINT BE LIABLE TO CUSTOMER OR ANY PERMITTED USER FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (i) SAVINGS, (ii) PROFIT, (iii) DATA, (iv) USE, OR (v) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
(a) Term. A subscription to the Wagepoint Services will commence on the Effective Date and will continue in full force and effect until this Agreement is terminated by either Party (the “Term”).
(b) Termination by Wagepoint. Wagepoint may, at its discretion, terminate this Agreement effective immediately at any time by providing written notice to Customer.
(c) Termination by Customer. Customer may, at its discretion, terminate this Agreement by:
(i) Closing its account following the “Close Account” instructions on the Website; or
(ii) Provide written notice to Wagepoint that Customer wishes to terminate this Agreement.
(d) Effect of Termination. Upon termination of this Agreement, Customer will immediately cease (and ensure that all Permitted Users immediately cease) accessing or using the Wagepoint Services (without right to refund of any Fees) and Customer shall delete or, if requested by Wagepoint, return any Wagepoint Property in its possession and certify in writing to Wagepoint that the Wagepoint Property has been deleted or destroyed. No termination will affect Customer’s obligation to pay all Fees and any amounts due to Wagepoint that may have become due before such termination or entitle the Customer to any refund. Upon termination, Wagepoint will invoice Customer for a final invoice, and all Fees are immediately due and are to be immediately paid by Customer to Wagepoint. Wagepoint has no obligation to refund to Customer any pre-paid Fees, and Customer is not eligible for a refund or pro-rated amount for any monthly subscription fees. Wagepoint will have no obligation to maintain or provide any Customer Data and will thereafter: (a) indicate that the Customer’s account is “inactive”, “closed”, or “suspended”; and (b) at Wagepoint’s discretion delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless Wagepoint is legally prohibited from doing so or is required to retain Customer Data. Notwithstanding the foregoing, Wagepoint will not be required to remove any Customer Data from its media and services that are maintained in accordance with its standard procedures of record retention policies until such time as such data is scheduled to be deleted provided that in all cases Customer Data will continue to be protected in accordance with this Agreement.
(e) Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 3 (Ownership; Reservation of Rights), Section 4 (Privacy), Section 5 (Fees and Payment), Section 7 (Confidential Information), Section 8 (Warranty and Disclaimer), Section 9 (Indemnities), Section 10 (Limitation of Liabilities), Section 11(e) (Survival), and Section 15 (General Provisions).
(a) Accountant represents and warrants that it will use the Wagepoint Services on behalf of Company only after:
(i) Accountant has ensured Company has read and accepted these Terms of Service;
(ii) Accountant has entered into an agreement with Company that permits Accountant to utilize the Wagepoint Services on its behalf;
(iii) Accountant has ensured Company has provided the required information to comply with all record-keeping obligations;
(iv) Accountant has verified that employees of Company with banking authority completed the administrator sign up process with Wagepoint including entering into a Pre Authorized Debit Agreement with Wagepoint; and
(v) Accountant has provided Wagepoint the authorized signer of the client, to be made an administrator on the account.
(b) Accountant agrees to provide Wagepoint with such Company information reasonably required by Wagepoint to comply with its legal obligations, Know Your Customer requirements, FINTRAC, and any other processes typically used to ensure against money laundering or fraudulent activities upon request.
(c) The following provisions apply to the provision of payroll services provided as part of the Wagepoint Services:
(i) In the event Accountant is managing the payroll, Accountant is responsible for reviewing all withdrawals, direct deposits, paychecks and reports prepared by Wagepoint for completeness, validity and accuracy according to Accountant and Company’s records. Accountant agrees to notify Wagepoint immediately of any discrepancies promptly after receipt of any reports and payroll information from Wagepoint.
(ii) When a Company is managing the payroll, Accountant is responsible for ensuring the Company is aware of its obligations to review all withdrawals, direct deposits, paychecks and reports prepared by Wagepoint for completeness, validity and accuracy according to Company’s records and that the Company agrees to notify Wagepoint immediately of any discrepancies promptly after receipt of any reports and payroll information from Wagepoint.
(d) Accountant will provide accurate account numbers, remittance frequency and all other information required from time to time to permit accurate and timely statutory tax remittance by Wagepoint. Accountant will be responsible for updating the Company’s information via the Wagepoint Services immediately with any changes to the frequency with which Wagepoint must make its statutory remittances.
(e) As between Accountant and Company, Company retains all ownership and Intellectual Property Rights in and to Customer Data. Accountant acknowledges and agrees that Wagepoint may provide any of Company’s Customer Data to Company upon written request from Company.
(f) Accountant acknowledges and agrees that Wagepoint may reject any Company at Wagepoint’s sole discretion. Wagepoint will make reasonable efforts to notify Accountant of such rejection.
(g) Accountant will not:
(i) Make any representations, warranties or guarantees, whether publicly or to anyone, with respect to the specifications, features or capabilities of any Wagepoint Services that are deceptive, misleading or otherwise inconsistent with any materials that are made publicly available by Wagepoint; or
(ii) Do anything that suggests the Wagepoint Services belong to Accountant or anyone other than Wagepoint.
(h) The following provisions apply in the event that Accountant becomes aware that the financial condition of a Company deteriorates such that the collection of the Payroll Funds from a given Company is at risk:
(i) Accountant will promptly notify Wagepoint and if possible, Accountant will not approve the payroll for processing.
(ii) Upon notification, Wagepoint and Accountant will coordinate with the Company to mitigate risk of Losses.
(iii) Accountant acknowledges that, if Payroll Funds are returned for insufficient funds, the Company may be required to forfeit all future direct deposit or pre-authorized payment service privileges with Wagepoint
(i) Both Accountant and Wagepoint agree to take all commercially reasonable steps to discourage Company fraud. Accountant agrees and acknowledges that Wagepoint may disclose the Confidential Information of both Accountant and Company to third parties for the purposes of fraud prevention, fraud mitigation, and anti-money laundering initiatives.
(j) In the event Accountant is managing the payroll for Company, Accountant is responsible for reviewing all withdrawals, direct deposits, paychecks and reports prepared by Wagepoint for completeness, validity and accuracy according to Accountant and Company’s records. Accountant agrees to notify Wagepoint immediately of any discrepancies promptly after receipt of any reports and payroll information from Wagepoint.
(k) When a Customer is managing the payroll, Accountant is responsible for ensuring the Customer is aware of its obligations to review all withdrawals, direct deposits, paychecks and reports prepared by Wagepoint for completeness, validity and accuracy according to Customer’s records and that the Customer agrees to notify Wagepoint immediately of any discrepancies promptly after receipt of any reports and payroll information from Wagepoint.
(l) In addition to its other indemnification obligations under Section 9 of this Agreement, Accountant will defend, indemnify and hold the Wagepoint Indemnitees from and against any and all Losses incurred by a Wagepoint Indemnitee that arise from or relate any Action brought by Company or by Company’s personnel.
(a) Notices. Notices sent to either Party will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be sent: (i) if to Wagepoint, to the following address and email contact:
Wagepoint #1110, 240 – 70 Shawville Blvd, SE Calgary, Alberta Canada T2Y 2Z3 firstname.lastname@example.org
and (ii) if to Customer, to the current mailing or email address that Wagepoint has on file with respect to Customer. Wagepoint may change its contact information by posting the new contact information on the Website or by giving notice thereof to Customer. Customer is solely responsible for keeping Customer’s contact information on file with Wagepoint current at all times during the Term.
(b) Assignment. Customer may not assign this Agreement to any third party without Wagepoint’s prior written consent. Any purported assignment or delegation by Customer in violation of this Section will be null and void. Wagepoint may assign this Agreement or any rights under this Agreement to any third party without Customer’s consent. This Agreement enures to the benefit of and is binding upon the Parties and their respective successors and permitted assigns.
(c) Governing Law and Attornment. This Agreement and any Action related thereto will be governed by and construed in accordance with the laws of the province of British Columbia and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Vancouver, British Columbia, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This choice of jurisdiction does not prevent Wagepoint from seeking injunctive relief with respect to a violation of Intellectual Property Rights or confidentiality obligations in any appropriate jurisdiction.
(d) Export Restrictions. Customer will comply with all export laws and regulations that may apply to its access to or use of the Wagepoint Services. Wagepoint makes no representation or warranty that the Wagepoint Services may be exported without Customer first obtaining appropriate licenses or permits under applicable law, or that any such license or permit has been, will be, or can be obtained.
(e) Construction. Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion” mean the right of a Party to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the other Party.
(f) Force Majeure. Neither Party will be liable for delays caused by any event or circumstances beyond that Party’s reasonable control (except for a failure by Customer to pay Fees or Customer’s indemnities under this Agreement), including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving that Party’s employees), Internet service failures or delays, or the unavailability or Modification by third party providers of telecommunications, financial systems, banking networks, hosting infrastructure, websites, or other third party services (“Force Majeure”). For clarity, a Force Majeure event shall not excuse the Customer from its failure to pay Fees or Customer’s indemnities under this Agreement.
(g) Severability. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
(h) Waiver. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
(i) Independent Contractors. Wagepoint’s relationship to Customer is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and neither Party will represent to any third party that it has, any authority to act on behalf of the other Party.
(j) Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications between the Parties, whether written or oral.
(k) Amendments. No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. NOTWITHSTANDING THE PRECEDING SENTENCE, WAGEPOINT MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT OR POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY WAGEPOINT, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO COMPANY OR IS POSTED ON THE WEBSITE (WHICHEVER IS THE EARLIER).
(l) Customer Lists. With Customer’s prior written consent, Wagepoint may identify the Customer by name and logo as a customer of the Wagepoint Services on the Website and on other promotional materials. Any goodwill arising from the use of the Customer’s name and logo will inure to the benefit of the Customer.
(m) English Language. It is the express wish of the Parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des Parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
(a) “Accountant” means a Customer who is accessing or using the Wagepoint Services on behalf of a Company in order to provide accounting, payroll, and similar services to Company.
(b) “Company” means a Customer who is subscribed to the Wagepoint Services via an Accountant.
(c) “Customer Data” means any data, information, content, records, and files that Customer or any Permitted User loads or enters into, transmits to, or makes available to the Wagepoint Services, including but not limited to: (i) Personal Information; (ii) business registration; (iii) directors and officers; (iv) beneficial ownership; and (v) corporate status and formation. Customer Data does not include Aggregated Data or any other Wagepoint Property.
(d) “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
(e) “Loss” or “Losses” means any and all losses, damages, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
(f) “Modifications” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.
(g) “Personal Information” means information about an identifiable individual, including name, phone number, address, government identification, date of birth, social insurance number, social security number, bank account numbers, credit card or other billing information, tax account numbers, employment information (i.e. hire date, salary, benefits, termination date), gender, marital status, IP address, email address and home and business addresses.
(h) “Sign-Up Form” means the sign-up form on the Website for subscription to the Wagepoint Services that references these Terms of Service and that is executed by both Parties.
(i) “Website” means any websites used by Wagepoint to provide the Wagepoint Services, including the websites located at https://payroll.wagepoint.com.