Terms and Conditions
BEYONDPAY TERMS AND CONDITIONS: Subject to the following terms and conditions, BEYONDPAY shall provide Client with such payroll, tax filing and other data processing services as Client may request from time to time (the “Services”). All references herein to “Client” shall refer to Client and its affiliates that are receiving the Services pursuant hereto. Certain Services such as Payroll Tax Pay and File Services, Official Bank Checks (“OBC”), and Direct Deposit, are available only for as long as clients meet BEYONDPAY’s eligibility requirements and require execution of additional forms (e.g., Power of Attorney, Authorization to Debit, bank OBC agreement). Direct Deposit Services shall be provided to Client in accordance with the operating rules of the National Automated Clearing House Association (“NACHA”).
SUMMARY IN PLAIN LANGUAGE
BeyondPay wants to provide you with the best customer experience possible. To do this, we hire some of the best staff and offer a wide range of products and services. While we would love to do this by hiring enough staff to guarantee accuracy and elimination of all risks, in order to provide these products and services competitively at prices consistent with the market, the client needs to accept responsibility for having sufficient funds to process payroll, to pay fees due BeyondPay, and reviewing any and all information processed by BeyondPay. While BeyondPay will generally do anything it can to make it right, whether mistakes were made by the Client or BeyondPay, we can’t accept financial responsibility and risk from errors and omissions made by BeyondPay. Even if you ask us to pay someone $10/hour and we key something in that pays $1,000/hour, it is the Client’s responsibility to review the payroll reports and pay statements, notify BeyondPay of the mistake, and if not caught timely–retrieve funds paid erroneously to employees. This is why it is so important to review your payroll reports and pay statements promptly, especially when you pay employees for the first time and upon termination. BeyondPay will never reimburse for tax funds owed by a Client nor wages to an Employee, even if the mistake was made by BeyondPay. BeyondPay, as a part of its Payroll & Tax Filing services does cover penalties to tax agencies when a mistake is made by BeyondPay, and if BeyondPay collected the funds but did not make a payment, we will also cover the interest assessed. Outside of this situation, it is the Client’s responsibility to have sufficient internal controls and procedures to ensure the data processed by BeyondPay is accurate and the results accurate, even if a report contains inaccurate data or a system setting is calculating data incorrectly from an error in configuration or a bug.
1. THE SERVICES
- Performance Standard. BEYONDPAY will perform the Services in a professional manner, using personnel having a level of skill in the area commensurate with the requirements of the Services to be performed. If BEYONDPAY employees are located on Client’s property, BEYONDPAY will advise such employees to observe the reasonable security and safety policies of Client as such are communicated to BEYONDPAY sufficiently in advance from time to time.
- Use of Services. Client will use the Services in accordance with the instructions and reasonable policies established by BEYONDPAY from time to time and communicated to Client. Client will use the Services only for the internal business purposes of the Client. Client will not provide, directly or indirectly, any of the Services or any portion thereof to any party other than the Client.
- Impound Services. If Client is receiving any of the Services that require BEYONDPAY to impound funds from Client’s account to pay Client’s third-party payment obligations (e.g., Payroll Tax and File Services, Wage Garnishment Services, Insurance Payment Services, and/or Direct Deposit Services, hereafter “Impound Services”), Client shall have sufficient, collected funds in Client’s account within the deadline established by BEYONDPAY to satisfy such third-party payment obligations in their entirety. BEYONDPAY may commingle Client’s impound funds with other clients,’ BEYONDPAY’s or BEYONDPAY-administered funds of a similar type. ALL AMOUNTS EARNED ON SUCH FUNDS WHILE HELD BY BEYONDPAY WILL BE FOR THE SOLE BENEFIT OF BEYONDPAY.
- Accuracy of Client information, Review of Data. All services provided hereunder will be based upon information provided to BEYONDPAY by Client (including proof of federal, state and local tax identification numbers). Upon receipt from BEYONDPAY, whether electronically or otherwise, Client will promptly review all disbursement records and other reports prepared by BEYONDPAY for validity and accuracy according to Client’s records.
- Client Responsible for Compliance with Laws. The Services are designed to assist Client in complying with applicable laws and governmental regulations. Nevertheless, Client (and not BEYONDPAY) will be responsible (i) for compliance by Client with all laws and governmental regulations affecting its business, and (ii) for any use Client may make of the Services to assist it in complying with such laws and governmental regulations. Client will not rely solely on its use of the Services in complying with any laws and governmental regulations. No state or federal agency monitors or assumes any responsibility for the financial solvency of third-party tax filers.
- Direct Deposit. With respect to Direct Deposit Services, prior to the first credit to the account of any employee or other individual (a “Payee”), Client shall obtain a signed authorization from such Payee (a “Payee Authorization”), which shall be in a form required by NACHA to include but not be limited to the authorization of Payee reversals. Client shall retain a copy of each Payee Authorization during the period such Payee Authorization is in effect and for two years thereafter and shall furnish such copy to BEYONDPAY upon request. Client represents and warrants to BEYONDPAY and to the bank originating debit/credit instructions on BEYONDPAY’s behalf (the “Originating Bank”), if applicable, that (a) each credit and debit (reversing or correcting a prior payroll credit) to the account of a Payee is timely and has been authorized pursuant to a Payee Authorization signed by such Payee and held by Client; (b) at the time any credit is made to the account of any such Payee, Client has no actual knowledge of the revocation or termination of such Payee’s Payee Authorization; (c) each debit to the account of a Payee (reversing or correcting prior payroll credit) is for a sum which is due and owing to Client and Client has notified the Payee of such debit prior to its initiation; (d) the amount indicated by Client as being owned to each Payee is in fact due and owing to such Payee; and (e) Clients’ electronic credit payments comply with United States law and all other applicable laws.
- OBC CHECKING. BEYONDPAY offers a service that allows checks to be drawn under an account controlled by BEYONDPAY. BEYONDPAY will (i) process EFT transactions at least one banking day prior to Client’s check date, for the sum of the net pay of Client’s employees; (ii) hold such amounts in an account established by BEYONDPAY; and (iii) draw checks payable to Client’s employees on Client’s check date and provide those checks to the Client. Client will issue checks to employees on or after the check date. Checks drawn by employees before the check date will not be honored and it will be the Client’s responsibility to pay the employees. If Client’s employee fails to present a check for payment within six (6) months of the check date (“Stale Check”), BEYONDPAY will refund the amount debited for the Stale Check back to Client minus any balances owed by Client and charge a fee for the transfer of Stale Check funds back to Client. Client will be solely responsible for payment to its employee, and for following any state unclaimed property laws in regards to outstanding employee funds. If an OBC check is lost, stolen, destroyed or unable to be cashed (“Voidable Check”), Client agrees to notify BEYONDPAY immediately and request the check to be voided. Client agrees to return any Voidable Check if it is every found or discovered in the future. If the voided check is cashed, negotiated, or otherwise presented for payment, and the financial institution that BEYONDPAY’s OBC service is drawn upon requires a lost/stolen check affidavit, Client agrees that Client is responsible for producing the affidavit.
2. FEES; TAXES; PAYMENTS
- Fees. Client shall pay BEYONDPAY for the Services indicated on the Sales Order or Pricing Proposal at the rates set forth thereon for the first six months after the date this Agreement is accepted by Client (assuming no changes in requirements, specifications, volumes or quantities) (the “Initial Period”). Client shall pay BEYONDPAY for the Services added by Client after the date hereof at BEYONDPAY’s then prevailing prices for such Services. BEYONDPAY may increase prices at any time after the Initial Period upon at least 30 days prior written notice to Client if such change is part of a general price change by BEYONDPAY to its clients for affected items. Termination fees may apply. These prices do not include the charges referred to in Section 1C or monthly communication charges or communication installation charges, which will be paid by Client.
Client will pay all invoices by ACH debit in full within five (5) business days of invoice date. If Client fails to pay any amount due hereunder, whether by acceleration or otherwise, Client, on written demand, shall pay interest at the rate of 1.5% per month (or the maximum allowed by law if less) on such past due amount from the due date thereof until the payment date. Client shall reimburse BEYONDPAY for any expense incurred, including interest and reasonable attorney fees in collecting amounts due BEYONDPAY hereunder.
- Taxes. There shall be added to all payments hereunder amounts equal to any applicable taxes levied or based on this Agreement, exclusive of taxes based on BEYONDPAY’s net income.
- BeyondPay maintains a few exception fees for payroll processing services required upon a penalty or certain excessive processing requirements due to client neglect. The current list includes, but is not limited to the following:
- Applied for ID Numbers ($35/month)
- W2 / 1099 Amendment or Reprint ($25)
- Amended Return ($150)
- Prior Year Amended Return ($100)
- Prior Quarter Adjustment ($100)
- Direct Deposit Reversal ($75)
- Direct Deposit Return ($20)
- Company NSF ($100+)
- Positive Pay ($35/payroll)
- Wire Transfer Fee ($35/received wire)
- Reverse Wire Fee ($20/wire)
3. DISCLAIMER OF WARRANTIES
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, BEYONDPAY EXPRESSLY DISCLAIMS ANY WARRANTY, EITHER EXPRESSED OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NONINTERRUPTION OF USE, AND FREEDOM FROM PROGRAM ERRORS WITH RESPECT TO THE SERVICES, THE BEYONDPAY PRODUCTS, ANY CUSTOMER PROGRAMS CREATED BY BEYONDPAY OR ANY THIRD-PARTY SOFTWARE DELIVERED BY BEYONDPAY.
4. GENERAL PROVISIONS
- Protection of Client Files. BEYONDPAY will take reasonable precautions to prevent the loss of or alteration to Client’s data files in BEYONDPAY’s possession, but BEYONDPAY does not undertake to guarantee against any such loss or alteration. A copy of BEYONDPAY’s current record retention policy relating to the Services is available upon request. BEYONDPAY will maintain a record retention policy and may from time to time, in its sole discretion, modify or amend such policy. However, BEYONDPAY is not and will not be Client’s official record keeper. Accordingly Client will, to the extent it deems necessary, keep copies of all source documents of the information delivered to BEYONDPAY.
- Nondisclosure. All Confidential information disclosed hereunder will remain the exclusive and confidential property of the disclosing party. The receiving party will not disclose the Confidential Information of the disclosing party and will use at least the same degree of care, discretion and diligence in protecting the Confidential Information of the disclosing party as it uses with respect to its own confidential information. The receiving party will limit access to Confidential Information to its employees with a need to know and will instruct such employees to keep such information confidential. Notwithstanding the foregoing, the receiving party may disclose Confidential Information to the extent necessary to comply with any law, rule, regulation or ruling applicable to it and to the extent necessary to enforce its rights under this Agreement. Upon the request of the disclosing party, the receiving party will return or destroy all Confidential Information of the disclosing party that is in its possession. For purposes of this Section, “Confidential Information” shall mean: all information of a confidential or proprietary nature provided by the disclosing party to the receiving party for use in connection with the Services, but does not include (i) information that is already known by the receiving party, (ii) information that becomes generally available to the public other than as a result of disclosure by the receiving party in violation of this Agreement, and (iii) information that becomes known to the receiving party from a source other than the disclosing party on a non-confidential basis. Confidential Information of BEYONDPAY also includes all BEYONDPAY trade secrets, processes, proprietary data, information or documentation related thereto, or any pricing or product information furnished to Client by BEYONDPAY.
5. LIMITATION OF LIABILITY
- Client Responsibility. Client will be responsible for (i) the consequences of any instructions Client may give to BEYONDPAY, (ii) Client’s failure to use the Services in the manner prescribed by BEYONDPAY, (iii) Client’s failure to supply accurate input information, (iv) Client’s failure to review every payroll for accuracy and reasonableness using available reports and review of pay stubs, including the first and last pay statement(s) of any newly hired or terminated employee(s).
- Errors and Omissions. BEYONDPAY’s sole liability to Client or any third party for claims of any type or character arising from errors or omissions in the Services that are caused by BEYONDPAY shall be to correct the affected Client report, data or tax agency as the case may be. Upon the request of Client, BEYONDPAY will correct any error or omission made by BEYONDPAY in connection with the Services at no additional charge to Client.
- Limit on Monetary Damages. Notwithstanding anything to the contrary contained in this Agreement (other than and subject to Section 4B above and Section 6D below), BEYONDPAY’s liability under this Agreement for damages (monetary or otherwise) under any circumstances for claims of any type or character made by Client or any third party arising from or related to the Services will be limited in each instance to the lesser of (i) the amount of actual damages incurred by client or, (ii) BEYONDPAY’s charges for the affected Services; provided however, that BEYONDPAY’s aggregate liability hereunder in any calendar year will not exceed the average charge for one payroll processing paid by Client to BEYONDPAY for the payroll services during such calendar year. BEYONDPAY will issue Client a credit(s) equal to the applicable amount and any such credit(s) will be applied against subsequent payroll processings. The foregoing limitation shall not apply to actual damages incurred by Client as a direct result of the criminal or fraudulent acts of BEYONDPAY or any of its employees.
- Tax Penalties and Interest Assessments. If as a result of an error or omission made by BEYONDPAY in performing the Tax Filing Services hereunder, an applicable taxing authority imposes a penalty on or assess interest against Client, BEYONDPAY will (i) pay all penalties resulting from BEYONDPAY’s error or omission and (ii) pay any interest charges imposed on Client for the failure to pay funds to the extent and for the period that such funds were held by BEYONDPAY. In any such case, Client will be responsible for all additional taxes and any other interest charges.
- Official Bank Check/Direct Deposit. Neither BEYONDPAY nor the Originating Bank shall be liable for any damages to Client arising from any decision to refrain from or delay originating debit/credit entries in connection with Client’s payroll (i) after reasonable efforts to verify such debit/credit entries by the required security procedure have failed, (ii) due to Client’s creditworthiness, or (iii) because BEYONDPAY has not received timely funds from Client as required by Section 1C. Client agrees that BEYONDPAY will not be liable for any damages to Client arising from any bank decision to withhold the release of a Client payroll which is processed on Official Bank Checks. Regardless of any such delay in the release of Official Bank Checks, Client will still be obligated to pay BEYONDPAY for applicable payroll processing charges. With respect to Direct Deposit Services, BEYONDPAY and the Originating Bank have implemented a security procedure to verify the authenticity of debit/credit instructions transmitted to the Originating Bank, and not for detecting errors in such instructions. Such security procedure includes (i) a unique file identification number and transmission password, (ii) encryption, and (iii) automated verification of total dollars and number of items in the file. Client agrees that this procedure constitutes a commercially reasonable method of providing security against unauthorized instructions. Client shall be bound by any debit/credit instruction issued in respect of Client and received and verified by the Originating Bank in accordance with such security procedures and neither BEYONDPAY nor the Originating Bank shall be liable for any loss sustained from any instructions which are not authentic if such security procedures have been followed in good faith.
- No Consequential Damages. NEITHER BEYONDPAY, THE ORIGINATING BANK NOR CLIENT WILL BE RESPONSIBLE FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR OTHER SIMILAR DAMAGES (INCLUDING LOST PROFITS) THAT THE OTHER PARTY MAY INCUR OR EXPERIENCE IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, HOWEVER CAUSED AND UNDER WHATEVER THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6. TERM AND TERMINATION; DEFAULT BY CLIENT; REMEDIES UPON DEFAULT
- Services. During the first 60 days of service with respect to Services covered by this Agreement (other than Impound Services), Client may terminate this Agreement at any time; thereafter, either BEYONDPAY or Client may terminate this Agreement upon 60 days prior written notice to the other. BEYONDPAY or Client may terminate the Impound Services upon at least 30 days prior written notice without cause and the Impound Services may be immediately terminated by BEYONDPAY without prior notice if (i) any of the events in Section 7B occur with respect to Client, (ii) any unauthorized credits or debits are initiated in Client’s name, (iii) the Originating Bank notified BEYONDPAY that it is no longer willing to originate debits and credits for any reason, (iv) the Authorization to Debit is terminated, (v) Client terminates or is terminated from the Tax Filing Services, or (vi) BEYONDPAY reasonably determines that Client no longer meets BEYONDPAY’s eligibility requirements for such Services.
- Client Defaults. Notwithstanding anything contained herein, if Client (i) defaults in the payment of any sum of money hereunder, (ii) defaults in the performance of any of its other obligations hereunder, (iii) commits an act of bankruptcy or becomes the subject of any Bankruptcy Act proceeding or becomes insolvent, or if any substantial part of Client’s property becomes subject to any levy/seizure, assignment, application or sale for or by any creditor or governmental agency, or (iv) has any material adverse change (in BEYONDPAY’s sole opinion) in its financial condition, then, in any such event, BEYONDPAY may, upon written notice thereof, (a) terminate this Agreement and/or any of the Services, (b) declare all amounts due and to become due immediately due and payable and/or (c) require Client to deposit an amount equal to its average per processing charges or to prepay for future processing.
- Post Termination. If any of the Services are or may be terminated by BEYONDPAY pursuant to Sections 7A or 7B, BEYONDPAY shall be entitled to allocate any funds remitted or otherwise made available by Client to BEYONDPAY in such priorities as BEYONDPAY (in its sole discretion) may determine appropriate (including reimbursing BEYONDPAY for payments made by BEYONDPAY hereunder on Client’s behalf to a third party) and if any such Services are terminated, Client will immediately: (i) become solely responsible for all of its third-party payment obligations covered by such Services then or thereafter due (including, for Tax Filing Services, all related penalties and interest); (ii) reimburse BEYONDPAY for all payments made by BEYONDPAY hereunder on Client’s behalf to any third party; and (iii) pay any and all fees and charges invoiced by BEYONDPAY to Client relating to the Services. If BEYONDPAY elects not to terminate any or all of the Services as permitted hereunder, BEYONDPAY may require Client to pay its outstanding and all future third-party payment amounts covered by the Services and/or BEYONDPAY’s fees and charges for the Services to BEYONDPAY by bank or certified check or by wire transfer as a condition to receiving further Services.
- Remedies Cumulative. The remedies contained in this Section 7 are cumulative and in addition to all other rights and remedies available to BEYONDPAY hereunder, by operation of law or otherwise.
7. FUNDING INDEMNIFICATION
- Funding. Client shall indemnify and hold harmless BEYONDPAY from and against any loss, liability, claim, damage or exposure (each a “Loss”) arising from or in connection with any action, proceeding or claim made or brought against BEYONDPAY by any bank with whom Client maintains a payroll account or funds for any BEYONDPAY error, omission or failure incident or pursuant to BEYONDPAY providing the Services to Client that would have been corrected by BEYONDPAY, except Client refused or was unable to fund or reimburse such bank.
- Debits. Client shall be liable for debits initiated by BEYONDPAY hereunder. Client unconditionally promises to pay to BEYONDPAY the amount of any unfunded payroll file (including any debit which is returned to BEYONDPAY because of insufficient or uncollected funds or for any other reason), upon demand and interest thereon at the rate set forth in Section 2A. Also, if any debit to a Payee’s account reversing or correcting a previously submitted credit(s) is returned for any reason, Client unconditionally promises to pay the amount of such debit upon demand and interest thereon at the rate set forth in Section 2A. Client, its Board of Directors, its officers, and its management shall be liable for, and shall indemnify BEYONDPAY against, any loss, liability, claim, damage or exposure arising from or in connection with any fraudulent or criminal acts of Client’s employees.
- Assignment. This Agreement shall not be assigned by Client without the prior written consent of BEYONDPAY.
- Inducement. Client has not been induced to enter into this Agreement by any representation or warranty not set forth in this Agreement. This Agreement contains the entire agreement of the parties with respect to its subject matter. This Agreement shall not be modified except by a writing signed by BEYONDPAY and Client.
- No Third Party Beneficiaries. BEYONDPAY has no obligation to any third party (including, without limitation, Client’s employees and/or any taxing authorities) by virtue of this Agreement.
- Force Majeure. Any party hereto will be excused from performance under this Agreement for any period of time that the party is prevented from performing its obligations hereunder as a result of an act of God, war, earthquake, civil disobedience, court order, labor dispute, or other cause beyond the party’s reasonable control.
- Non-Hire. During the term of this Agreement, Client shall not solicit the employment of any BEYONDPAY employee.
- Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of New Jersey. All actions in connection with, or pertaining to, this Agreement or its subject matter shall be commenced in the Superior Court of New Jersey, County of Hunterdon.