PrimePay Product Terms

1. PrimePay Software Services – Where PrimePay, LLC or its subsidiaries or affiliates (“PrimePay”) offers its software products and recurring services (the “Products”) purchased by a legal entity (“Customer”) in a signed order form, quote, or as otherwise made available to Customer and documented via a website managed by PrimePay (hereinafter an “Order Form”), each of the Products listed in the Order Form shall be considered part of Customer’s “PrimePay Services,” and the following terms and conditions of these Product Terms (the “Terms”) shall govern Customer’s PrimePay Services. All agreements for one-time services, including but not limited to onboarding, setup, implementation, customization, or configuration services (“Services”) shall be rendered pursuant to a separate agreement or Statement of Work (“SOW”) on distinct and separate terms. Customer and PrimePay collectively shall be referred to as the “Parties.” If identified in an Order Form, Customer’s PrimePay Services may include the use of beta or trial products (collectively “Trial Products”).
2. License to Use the Products – PrimePay grants Customer a non-exclusive, limited, and non-transferable license to use the products and services included in Customer’s PrimePay Services, limited to its own internal business purposes, subject to Customer timely paying its Fees and complying with the Terms. Except where authorized by PrimePay, separate Order Forms and associated Fees are required for separate business entities to use any of the products that comprise Customer’s PrimePay Services. By signing an Order Form or otherwise agreeing to these Terms, Customer surrenders any prior granted license to the Products. Customer shall not rent, lend, resell, or transfer the Products without PrimePay’s express written permission. Customer’s license for Trial Products may not require payment of Fees.
3. Fees – During the Term of Customer’s PrimePay Services, Customer shall pay all fees, costs, and expenses (collectively “Fees”) associated with Customer’s use of the Products at the pricing stated on the Order Form or as modified by PrimePay in accordance with these Terms. All Fees are non-refundable and exclusive of taxes or duties, which shall be paid separately by Customer, where applicable. Unless otherwise stated in the Order Form, PrimePay shall collect the Fees on a recurring basis in arrears at the greater of: (i) Customer’s usage of the Products based on the highest number of Customer employees recorded in the prior month; or (ii) the minimum billing amount listed on Customer’s Order Form, as may be amended in accordance with these Terms. Customer shall waive its right to dispute any invoice forty-five (45) days after the date on the invoice. Where Customer has purchased combinations of the Products, including bundled products and services, Customer may not swap features or individual functions. Upon execution of the Order Form, Fees are due upon the commencement of the Initial Term of Customer’s PrimePay Services in accordance with the Term section below. PrimePay may increase Fees  by providing sixty (60) days’ Notice to Customer. Unless Customer and PrimePay mutually agree to bill by alternative means, Customer authorizes PrimePay to automatically bill via a recurring Automated Clearing House (“ACH”) transaction. Unless specifically stated otherwise, all Fees are in US Dollars. Any past due Fees shall bear interest at the greater of the rate of one and a half percent per month; or the maximum rate permitted by law. In the event of an uncured default, non-payment, or chargebacks, Customer shall be deemed in breach of these Terms and subject to Suspension and Termination. Customer agrees to reimburse PrimePay for all costs expended to collect the Fees. In the event of delinquency on any Fees due, or in the event of Customer’s breach or termination of its PrimePay Services, during the Term of this Agreement or after Termination, Customer expressly authorizes and ratifies PrimePay’s right to collect the balance of any unpaid Fees due during the Term of Customer’s PrimePay Services, including Fees due during the notice period associated with any Termination of Customer’s PrimePay Services, by collecting any amounts held in trust for payroll or tax, in addition to exercising any of PrimePay’s other rights and remedies provided in these Terms.  Unless otherwise stated, all discounts are one-time promotions and shall not apply beyond the promotional period listed in the promotional materials advertised by PrimePay, the accompanying terms and conditions of which shall herein be incorporated by reference. Individual promotions are offered one per Customer and may not be combined or swapped. Where Customer meets the stated requirements for a promotion purchased by Customer, the applicable promotional terms shall prevail over the corresponding section(s) of these Terms in the event of a conflict. Unless stated otherwise in an Order Form, offers set forth in an Order Form shall expire on the last day of the calendar month in which they are issued. Prices for ancillary products, travel expenses, services, W2s, or other fees due for Customer’s PrimePay Services, will be maintained on PrimePay’s Fee Schedule, which shall be subject to change at PrimePay’s sole and exclusive discretion, a copy of the current Fee Schedule can be provided upon Customer’s written request.
4. Software Performance – PrimePay shall make reasonable efforts to provide the Products via web browser or other electronic means of delivery, in substantial accordance with the most current product documentation, service descriptions, and user manuals published by PrimePay on its website or provided to Customer directly by PrimePay (collectively the “Documentation”). PrimePay reserves the right to modify the Products or discontinue parts of the Products, at its discretion. Customer acknowledges that PrimePay provides no warranty for Trial Products.
5. Product and Service Description – Documentation for the Products can be found at the following locations: Information regarding functionality, features, and tiers of payroll and HR bundled Products for Customers can be found at https://www.primepay.com/pricing. Existing customers shall be priced as listed on an Order Form or corresponding invoice, subject to any price increases discussed in these Terms. Any pricing or promotional information listed on PrimePay’s website shall only be applicable to new customers.  Information regarding support, tiers, and features shall be found at https://support.primepay.com/s/. PrimePay’s support sites and knowledge bases may require user credentials to access. PrimePay reserves the right to modify the Documentation or discontinue parts of the Documentation at its discretion.
6. Support – PrimePay shall provide support for the Products and shall make its best efforts to resolve any issue caused by the Products during its normal business hours of 8 am to 8 pm Eastern Time, Monday through Friday, excluding PrimePay’s designated holidays. Issues caused by third-party applications or integrations, customizations, internet connectivity, Customer’s local infrastructure, Customer’s Data or circumstances otherwise under Customer’s control shall be outside the scope of PrimePay’s support obligations. PrimePay may offer additional support levels, which require a separate purchase in an Order Form and shall be provided in accordance with the support descriptions found in the Documentation. Where PrimePay performs any support or installation (including but not limited to patches or updates) related to the Products or any third-party software, Customer authorizes PrimePay to click to accept any applicable terms and conditions (or updates thereto) on behalf of Customer. In order to provide support, quality control, and related services under Customer’s PrimePay Services, PrimePay may record audio and/or screen captures of support calls (“Recordings”) and Customer explicitly consents to such Recordings through acceptance of these Terms and/or use of the Products. Any such recordings will be kept confidential as per our Privacy Policy and maintained in accordance with our Document Retention Policy. Support for Trial Products shall be provided on limited, ad-hoc basis, at PrimePay’s sole discretion.
7. Third-Party Products and Services – Unless listed in an Order Form, third-party products and services are not included in Customer’s PrimePay Services. Even where listed, third-party products and services are subject to limited warranties and support. In addition, where Customer makes Customer Data available to any third party, whether separately or in conjunction with its use of the Products, Customer agrees PrimePay shall not be responsible for any modification, deletion, or disclosure of such data. PrimePay Products may occasionally utilize third-party products and services. Where applicable based on the Products included in Customer’s PrimePay Services, Customer agrees that the corresponding standard terms and conditions, and other attributions, shall apply to such products and services as described at https://primepay.com/terms/schedules/. From time to time, PrimePay, or third-parties, may make available certain third-party products or services (“Non-PrimePay Applications”), which are separate and independent from any Products listed on the Order Form. Any use or acquisition of such Non-PrimePay Applications by Customer, and any exchange of data between Customer and a Non-PrimePay Application, is solely between Customer and such Non-PrimePay Application and Non-PrimePay Applications are neither warranted nor supported, regardless of whether they are designated as “certified” or otherwise.
8. Professional Services – Where Customer requests PrimePay to deliver Services, such deliverables shall be rendered pursuant to a separate and distinct Statement of Work (“SOW”), at a separate cost, and governed by the terms and conditions set forth at  https://primepay.com/terms/service-terms/. For avoidance of doubt, billing for Fees on a recurring basis shall not be affected by the timing of delivery of any Services or SOW.
9. Customer Data – Information entered by Customer into the Products (“Customer Data”) shall at all times be owned, controlled, and maintained by Customer. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of Customer Data. Customer grants PrimePay a license to: (1) access Customer Data for the purposes of fulfilling any contractual obligations; and (2) to compile Customer Data in an anonymized form (“Aggregated Data”), as permitted by law and as may be described in PrimePay’s Privacy Policy. The Parties agree Aggregated Data is not Customer Data and shall be solely owned by PrimePay. Customer grants PrimePay a license to access Customer Data, and to disclose Customer Data to Partners, as defined herein, as needed to perform its obligations under these Terms. Customer warrants that all Customer Data is collected, used, and stored in accordance with applicable laws governing data privacy. PrimePay will permanently delete Customer Data as soon as thirty (30) days after the termination of Customer’s PrimePay Services, but no later than as prescribed in PrimePay’s Document Retention Policy, unless otherwise agreed with Customer in writing. Where Customer is current on its Fees, Customer may download reports, as available within the Products, which contain Customer Data. Provided that Customer is fully paid up on all remaining Fees due for the remainder of the Term, Customer may request to purchase a copy of Customer Data which PrimePay shall provide via export in a .csv file, pursuant to the terms of a separate SOW and payment of the associated fees.
10. Customer Duties – Customer shall execute and/or provide all documentation and other information that PrimePay requires to provide the Products or otherwise perform its responsibilities under the Agreement. Where Customer fails to provide the information requested by PrimePay in a timely manner, this may result in delayed remittance of wages, taxes, and garnishments and additional processing fees, or the commencement of Fees prior to Customer’s utilization of Customer’s PrimePay Services, all of which shall be the exclusive liability of Customer. PrimePay shall not be responsible for errors that result from PrimePay’s reliance on any Customer-provided information. Customer shall review all reports, documents, and payments produced by PrimePay and inform PrimePay of any inaccuracies promptly (with respect to the nature of the information exchanged). PrimePay shall not be responsible for any damages or liabilities resulting from any omitted, delayed, or inaccurate Customer information. Customer further agrees to immediately provide PrimePay with copies of any notices or correspondence received from any Federal, State or Local authority with respect to the Products. Customer shall also be liable and responsible for paying any fees, fines, or taxes relating to the Products.
11. Customer Compliance with Employment Laws. Customer shall be solely responsible for compliance with all applicable federal, state, and local employment laws, regulations, and requirements. This includes, without limitation, all obligations related to the classification of workers, including independent contractors. Customer acknowledges and agrees that it bears full responsibility for any claims, liabilities, or penalties arising from the misclassification of individuals as independent contractors or any other employment-related matters.
12. Maintain Sufficient Funds. If necessary for the Products selected by Customer, Customer shall maintain sufficient funds in its designated account necessary for PrimePay to provide the applicable services. Customer authorizes PrimePay to withdraw from such designated account(s) as necessary to provide the Products or collect the Fees. PrimePay shall not be liable in any instance where Customer fails to maintain sufficient funds in such account. PrimePay disclaims any obligation to advance Customer funds, but where PrimePay elects at its sole discretion to advance funds to ensure Customer meets its payroll or tax obligations, Customer agrees it shall be liable to: promptly pay the balance of the advanced funds, a $150 fee per transaction advanced by PrimePay, applicable processing fees related to such payment(s), and interest assessed against all unpaid amounts at the maximum interest rate permitted by law.
13. PrimePay Duties – PrimePay warrants that it has the legal right to enter into this Agreement and that it shall provide the Products to Customer during the Term in substantial accordance with the Documentation.
14. Confidentiality – Neither Party shall disclose the other Party’s information that is either marked confidential or, given its subject matter, would reasonably be regarded as being of a confidential nature (“Confidential Information”) to third parties without the Customer’s express written consent, unless legally required to do so. This section shall not apply to information that is independently developed by, publicly known by and available to, or information already in the possession of, the disclosing Party, so long as that information comes to the disclosing Party free from a duty of confidentiality or a breach thereof. Any disclosure of Customer Data to a third party in accordance with these Terms shall not be a breach of this Section.
15. Intellectual Property – Any patent, trademark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world, whether or not registered (collectively “Intellectual Property”) are rights solely and exclusively owned by PrimePay. Customer irrevocably grants to PrimePay sole and exclusive ownership over any suggestions, ideas, enhancement or development requests, feedback, or recommendations related to the Products provided by Customer or its agents. PrimePay’s logos, slogans, trade dressing and product logos belong to PrimePay and may not be used without PrimePay’s express written consent.
16. Term – This Agreement shall be effective immediately upon Customer’s execution of the Order Form, conditioned on PrimePay’s acceptance of the Order Form. The Term of Customer’s PrimePay Services commences on the earlier of the date Customer first accesses the Products or processes payroll, or thirty (30) days after PrimePay makes the Products available to Customer, and shall continue for the minimum term length set forth in the corresponding Order Form executed by Customer (“Initial Term”). Customer’s PrimePay Services shall automatically renew for the same number of days as the Initial Term (a “Renewal Term”).   Customer may terminate its Initial Term, or any subsequent Renewal Term (collectively the “Term”) by providing notice in the manner proscribed in the Termination Section. Any third-party products and services listed on the Order Form shall be coterminous with the Term of Customer’s PrimePay Services.
17. Users – Each unique named individual authorized to use the Products on Customer’s behalf (“User”) must be licensed to use the Products. Customer must register each User with PrimePay by providing the User’s name and email and Customer must be responsible for maintaining User credentials including username and password. Customers may not share a User license between multiple individuals.
18. Suspension– PrimePay maintains the right to suspend Customer’s PrimePay Services and terminate access to the Products if Customer’s account is five (5) days past due. In such an event, Customer may lose access to Customer Data. Customer must make its account current in order to regain access to the Products and any Customer Data stored therein. While Customer’s PrimePay Services is suspended, PrimePay shall have no obligation to support or assist Customer or its Users.
19. Termination –The Products included in Customer’s PrimePay Services are sold at Term lengths as provided in the Term section above. Customer may terminate its PrimePay Services for any reason by completing the termination form available to Customer within the PrimePay Products or provided by a PrimePay representative (“Termination Notice”). Customer must provide its Termination Notice in advance in the same length of time as Customer’s Term and Customer shall remain responsible for all Fees during the Notice period. By way of example, if Customer’s Order Form lists a Term of three (3) months, Customer’s Termination Notice must be provided ninety (90) days in advance of the effective date of Termination, and Customer shall remain responsible for payment of Fees during this notice period. In the event of a material breach of these Terms which remains uncured for thirty (30) days following Customer providing notice to PrimePay of the material breach and affording PrimePay a meaningful opportunity to cure, including cooperating with PrimePay support in order to identify, observe, and replicate the issue(s) which must be cured, Customer may terminate its PrimePay Services immediately by providing Termination Notice, without further liability for Fees after the notice period. Regardless of the cause for termination, Customer shall be responsible for the payment of all one-time annual fees, processing fees, and direct deposit fees, as applicable.  PrimePay may terminate Customer’s PrimePay Services for any reason by providing thirty (30) days’ Notice of termination, in which case PrimePay will return the unused portion of pre-paid fees. PrimePay reserves the right to terminate any Trial Products at any time without Notice. In the event that Customer is in material breach of these Terms, PrimePay may provide Notice of immediate suspension and termination without further liability to Customer.
20. Fair Use Policy – By using the Products, Customer agrees not to: violate the law; commit fraud; infringe on the intellectual property rights of another; authorize or allow multiple individuals to share a User license; utilize APIs, third-party tools, or integrations in any way that subverts the controls or restrictions of the Products; extract information or data from the Products; license, sublicense, sell, resell, use as a service bureau, transfer, assign, distribute, or otherwise use or commercially exploit the Products for a third party’s benefit; provide data to PrimePay to process that Customer as the data controller does not have authorization to provide; disassemble, decompile, reverse engineer, copy, reproduce, modify, or create any derivative works of the Products; authorize or allow use of the Products by individuals outside Customer’s organization; or use the Products for any purpose that competes with PrimePay. Customer must at all times maintain responsibility and security for all User credentials, and make reasonable efforts to prevent unlawful access or use of the Products by anyone using its Users’ credentials. Customer must notify PrimePay immediately if Customer learns this policy has been violated.
21. Publicity – Customer agrees that PrimePay may use Customer’s company marks, names, and logos, and other non-confidential information shared by Customer, to positively promote PrimePay on its website or external marketing channels. The Parties agree to cooperate to create and distribute press releases and case studies promoting Customer’s use of the Products.
22. Referral Partners – Customer acknowledges and agrees that, from time to time, PrimePay may refer Customer and/or its employees to a third-party providers (“Partners”) to possibly provide additional services which may be useful to Customer and/or its employees. If Customer and/or its employees acquires such services from any Partner, Customer hereby consents to PrimePay providing such Partner with the relevant contact information of Customer and/or its employees as PrimePay deems necessary for the purposes of a possible referral for additional services. Any bundled products or services offered by PrimePay with Partners shall not automatically enroll Customer in such services with the Partner and Customer shall be solely responsible for following the appropriate steps necessary to sign up for such additional services.
23. Non-Solicitation – Customer agrees it will not directly or indirectly recruit, solicit, or otherwise induce or attempt to induce any employee of PrimePay to terminate their employment. Customer acknowledges that if it breached this section and the relevant employee left their employment with PrimePay, it would be difficult to determine actual damages. Based on what the Parties presently know, they agree that an amount equal to 100% of the relevant employee’s annual salary is a reasonable estimate of the damages that would accrue if a breach of this provision occurred in the future and the relevant employee terminated his or her employment with PrimePay as a result. Customer agrees that the amount of liquidated damages is fair and reasonable and would not act as a penalty in such an instance.
24. Disclaimer of Warranty – PRIMEPAY ENDEAVOURS TO KEEP THE PRODUCTS OPERATING BUG-FREE, AND SAFE, BUT CUSTOMER ACKNOWLEDGES THAT ITS USE OF THE PRODUCTS IS AT ITS OWN RISK. PRIMEPAY PROVIDES THE PRODUCTS AS IS WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. PRIMEPAY DOES NOT GUARANTEE THAT THE PRODUCTS WILL ALWAYS FUNCTION WITHOUT DISRUPTIONS, DELAYS OR IMPERFECTIONS, INCLUDING BUT NOT LIMITED TO WHERE THE PRODUCTS ARE INTEGRATED OR COMBINED WITH THIRD-PARTY PRODUCTS AND SERVICES. PRIMEPAY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT THE PRODUCTS SATISFY ANY LEGAL OR COMPLIANCE REQUIREMENT IN ANY PARTICULAR JURISDICTION. THESE TERMS AND CUSTOMER’S USE OF THE PRODUCTS DO NOT CREATE OR IMPLY ANY CO-EMPLOYMENT RELATIONSHIP BETWEEN THE PARTIES OR OTHERWISE ENTITLE CUSTOMER OR ITS EMPLOYEES TO ANY CLAIMS UNDER EMPLOYMENT PRACTICES LIABILITY. Customer acknowledges and agrees that by providing the Products, PrimePay is not rendering any legal, human resource, benefit, tax, accounting or investment advice and therefore Customer should seek its own expert advisors for such matters. Customer acknowledges and agrees that any service provided by PrimePay relating to the Products is solely to support the Products, PrimePay shall have no obligation to provide expert support, advice, or expertise to Customer regarding the administration or operation of its human capital management outcomes. Customer further acknowledges and agrees that PrimePay is not a fiduciary under the Employee Retirement Income Security Act of 1974 (“ERISA”) PrimePay shall not be responsible for any liabilities, damages, errors, omissions or any other consequences resulting from Customer’s improper, unauthorized and/or misconstrued reliance on any such services or the Products performed by PrimePay, except as expressly warranted herein, ANY CLAIMS, PROMOTIONS, WARRANTIES OR REPRESENTATIONS IN ANY DEMONSTRATIONS OR OTHER COMMUNICATIONS, WRITTEN OR OTHERWISE, ARE EXPRESSLY DISCLAIMED HEREBY AND PRIMEPAY SHALL HAVE NO LIABILITY OR RESPONSIBILITY FOR CUSTOMER’S IMPROPER RELIANCE THERETO.
25. Limitation of Liability – WITH THE EXCEPTION OF ANY VIOLATION OF PRIMEPAY’S INTELLECTUAL PROPERTY RIGHTS BY CUSTOMER, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, LOSS OF BUSINESS OPPORTUNITY, BUSINESS INTERRUPTION, LOSS OF GOOD WILL, DAMAGE TO BUSINESS REPUTATION, LOSS OF BUSINESS INFORMATION, WORK STOPPAGE, LOSS OF DATA, COMPUTER FAILURE OR MALFUNCTION, OR OTHER SUCH PECUNIARY LOSS), WHETHER UNDER A THEORY OF CONTRACT, WARRANTY, TORT, OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL PRIMEPAY’S TOTAL AGGREGATE AND CUMULATIVE LIABILITY TO CUSTOMER CLAIMS ARISING FROM OR RELATED TO THE AGREEMENT, USE OF THE PRODUCTS, OR TO ANY ACT OR OMISSION OF PRIMEPAY, EXCEED THE AMOUNT CUSTOMER HAS PAID TO PRIMEPAY IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE APPLICABLE CLAIM. THIS LIMITATION OF LIABILITY APPLIES EQUALLY TO AFFILIATES AS DEFINED BELOW. THIS LIMITATION OF LIABILITY DOES NOT APPLY TO ANY LIABILITY WHICH THE PARTIES CANNOT LAWFULLY EXCLUDE PURSUANT TO APPLICABLE LAW. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PRIMEPAY AND CUSTOMER.
26. Indemnification – Customer shall fully indemnify, hold harmless and defend PrimePay and its directors, officers, employees, agents, stock holders, subsidiaries, and Affiliates from and against all claims demands, actions, suits, damages, liabilities, losses, settlements, judgments, costs and expenses (including but not limited to reasonable attorney’s fees and costs), whether or not involving a third party claim, which arises out of or relates to: any breach of any representation or warranty of Customer contained in these Terms; any breach or violation of any covenant or other obligation or duty of Customer under these Terms or under applicable law; and any violations of any applicable privacy laws caused by errors or omissions of Customer. PrimePay shall fully indemnify, hold harmless and defend Customer and its directors, officers, employees, agents, stock holders, subsidiaries, and Affiliates from and against all claims demands, actions, suits, damages, liabilities, losses, settlements, judgments, costs and expenses (including but not limited to reasonable attorney’s fees and costs), involving a claim that the Products infringe on the intellectual property rights of a third party, except where Customer’s conduct is a cause of the alleged infringement. Where the Products are held to infringe the intellectual property rights of a third party, in order to cease the infringement, PrimePay shall, at its election, either: modify the Products, procure the necessary license for Customer to continue to use the Products, or terminate the Agreement. This section shall be subject in all respects to the Limitation of Liability section above.
27. Assignment – Customer shall not directly or indirectly assign its rights or obligations under these Terms without PrimePay’s prior written consent. PrimePay may assign or transfer any of its rights or obligations under these Terms without the prior written consent of the Customer. Any assignment made not in accordance with this section shall be void and ineffective.
28. Policies and Compliance – PrimePay maintains internal policies intended to ensure PrimePay’s compliance with applicable laws and regulations. Samples of PrimePay policies may be requested in writing addressed to notice@primepay.com.
29. Severability – If any provision of these Terms is held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
30. Final Agreement – These Terms, the Documentation, and any fully executed Order Form between PrimePay and Customer (the “Agreement”) set forth the entire agreement relating to the subject matter hereof and supersede all prior agreements, discussions and understandings between them, whether oral or written, relating to the subject matter hereof. These Terms supersede any prior agreements between PrimePay and Customer. Notwithstanding the foregoing, to the extent Customer has any past due balance for fees owed to PrimePay under any prior agreement for PrimePay products or services, such past due balance shall remain due and payable as part of the Fees owed by Customer pursuant to the Agreement. No waiver of any provision of these Terms shall be construed as a waiver of PrimePay’s rights to enforce that or any other provision.
31. Governing Law – EXCEPT WHERE PROHIBITED BY LAW, PRIMEPAY AND CUSTOMER AGREE THAT EACH PARTY MAY ONLY BRING CLAIMS AGAINST THE OTHER PARTY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. NO ARBITER OR JUDGE MAY CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS UNDER THESE TERMS AGAINST EITHER PARTY TO THIS AGREEMENT WITHOUT THE WRITTEN CONSENT OF BOTH PARTIES. This Agreement shall be governed and construed in accordance with the statutory and decisional law of the State of Florida without regard to conflict of law principles. To the extent a court determines that notwithstanding this provision it is required to apply the law of another jurisdiction, and the law of such jurisdiction would render any of the restrictions in this Agreement invalid, the Parties agree that any provision rendered potentially invalid will be considered to afford the Parties the greatest available protection under the law of such jurisdiction with respect to the provision in question. Jurisdiction and venue for all purposes shall be deemed to lie exclusively within Hillsborough County, Florida. The Parties agree that a condition precedent to instituting any legal action other than the filing of an injunction to protect a Party’s intellectual property rights, the Parties must participate in a non-binding mediation, with the Parties equally splitting the costs of that mediation.
32. Prevailing Party – In the event of any litigation arising out of or related to these Terms or the Products, the prevailing party shall be entitled to recover from the non-prevailing party all costs and expenses associated with such proceedings, including reasonable attorney’s fees. For purposes of this provision, if a claim made by either Party is deemed to be filed in the improper forum, jurisdiction, or venue, the non-filing party shall be deemed the prevailing party in that action.
33. Modifications – PrimePay may make modifications to the Products or component parts (including but not limited to discontinuing a component), at its sole discretion, from time to time, without notice to Customer. Such modifications shall not be deemed to be a breach of these Terms and PrimePay shall not be liable for such modifications. PrimePay reserves the right to routinely update, amend or change these Terms upon written notice to Customer in any manner designated by this Agreement (“Notice”). Following a Notice under this Section, Customer’s continued use of the Products shall serve as consent to the modifications to the Terms.
34. Notices – Notices shall be defined as provided in this section. All Notices to Customer under these Terms will be deemed given when delivered in writing via e-mail, billing statement, or in-app messaging to an authorized Customer e-mail address as provided by Customer (for billing or other purposes) or as listed in an Order Form. Other than a Termination Notice (which shall be provided in the manner proscribed in the Termination section, all Notices to PrimePay under these Terms will be deemed given when delivered via e-mail to notice@primepay.com.
35. Supplemental Data Privacy Agreements – Where applicable based on Customer’s location and the nature of Customer’s PrimePay Services, the terms of the Data Processing Agreement (“DPA”) and the Business Associate Agreement (“BAA”), as set forth at https://primepay.com/terms/schedules/, and the Online Privacy Policy and Information Security Statement, set forth at https://primepay.com/privacy-policy/, are expressly incorporated into these Terms by reference.
36. Audit – Customer shall maintain, during the Term of its PrimePay Services and for one (1) year after, complete, accurate and detailed records regarding its use of the Products. Customer shall pay the associated fees at list price for any unauthorized use of the Products discovered by PrimePay.
37. Export Control – The Products are subject to U.S. and foreign export control laws. Customer shall not ship, transfer, export or re-export the Products into any country, or use them in any fashion prohibited by the United States Export Administrations Act or Regulations or any other applicable laws, restrictions, or regulations.
38. Regulatory Compliance – Customer warrants that neither Customer nor any of its directors, beneficial owners, or individuals with a controlling interest in Customer is a sanctioned person or a director in a sanctioned entity, and that Customer shall ensure Customer and its agents shall at all times comply with all applicable sanctions laws and regulations. Customer agrees that it will provide information and documentation reasonably requested by PrimePay in order to conduct regulatory compliance checks, which may involve the processing of information belonging to Customer, its agents, or employees, by third party vendors, and warrants that such information is accurate and up-to-date, and Customer shall notify PrimePay if any of the information provided changes. In the event of any subpoena, audit, or regulatory request, Customer authorizes PrimePay to provide the information as requested to the requesting party, without any notice to Customer. For purposes of clarity, this Section shall supersede any other commercial agreement or NDA executed between the Parties. If Customer is determined to be in a high-risk industry, high-risk goods or high-risk jurisdiction, at PrimePay’s sole discretion, Customer acknowledges that PrimePay may perform an enhanced due diligence process, with or without notice to Customer, and agrees to cooperate and provide all documentation requested. Breach of any of these terms by Customer shall be considered a material breach of this Agreement.
39. Affiliates – PrimePay may use Partners to provide the Products, without prior notice or consent. All entities described in this section shall be subject to the same limitations of liability set forth above. PrimePay shall at all times remain responsible for the performance of the Products.
40. Supplementary Product Agreements – If Payroll Services, Tax Services, or COBRA Solutions are part of Customer’s PrimePay Services, PrimePay shall provide those Products in accordance with the applicable terms found at https://primepay.com/terms/schedules/, which are herein incorporated by reference.

PrimePay Product Terms

1. PrimePay Software Subscription – Where PrimePay, LLC or its subsidiaries or affiliates (“PrimePay”) offers its software products and recurring or managed services (the “Products”) purchased by a legal entity (“Customer”) in signed order form, or as otherwise made available to Customer and documented via a website managed by PrimePay (hereinafter a “Quote”), each of the Products listed in the Quote shall be considered part of Customer’s PrimePay Subscription, and the following terms and conditions (the “Terms”) shall govern Customer’s PrimePay Subscription. All agreements for onboarding or setup services, including but not limited to implementation, customization, or configuration services (“Services”) shall be rendered pursuant to a separate agreement or Statement of Work (“SOW”) on distinct and separate terms. Where any section(s) of these Terms are modified in a Modification section on a Quote, the Modification shall prevail over the corresponding section in these Terms. Customer and PrimePay collectively shall be referred to as the “Parties.” If identified in a Quote, Customer’s PrimePay Subscription may include the use of beta or trial products (collectively “Trial Products”).
2. License to Use the Products – PrimePay grants Customer a non-exclusive, limited, and non-transferable license to use the products and services included in Customer’s PrimePay Subscription, limited to its own internal business purposes, subject to Customer timely paying its Fees and complying with the Terms. Except where authorized by PrimePay, separate Quotes and associated Fees are required for separate business entities to use any of the products that comprise Customer’s PrimePay Subscription. By signing a Quote or otherwise agreeing to these Terms, Customer surrenders any prior granted license or perpetual license to the Products. Customer shall not rent, lend, resell, or transfer the Products without PrimePay’s express written permission. Customer’s license for Trial Products may not require payment of Fees.
3. Fees – Customer shall pay all fees, costs, and expenses (collectively “Fees”) as stated on the Quote for the entire Term of Customer’s PrimePay Subscription, and, unless expressly stated otherwise, no Fees associated with Customer’s PrimePay Subscription may be canceled for any reason. All Fees are exclusive of taxes or duties, which shall be paid separately by Customer, where applicable. Unless otherwise stated in the Quote, PrimePay shall collect the Fees on a recurring basis in advance of or during each billing period when the Products are provided. Customer shall waive its right to dispute any invoice forty-five (45) days after the date on the invoice. Where Customer has purchased combinations of the Products, including bundled products and services, Customer may not swap features or individual functions. Upon execution of the Quote, Fees are due for the initial billing period and payment terms as listed on the Quote. All Fees listed on the Quote shall be fixed for the Initial Term of this Agreement, provided, however, that (a) if Customer’s total number of individuals covered by Customer’s use of any Products purchased by Customer (“Employees”) increases by ten percent (10%) or more over the previously documented Employee count on the Quote or in the most recent billing period (subject to any previously accrued increases) the Fees shall increase by a corresponding percentage at the time of the increase or in the next billing period; and (b) PrimePay reserves the right to increase fees for components of the Products, no more than once per year for each component. PrimePay reserves the right to bill Customer at any time during the Term for an increase in number of Employees, as a “true up.” PrimePay may increase Fees for each Renewal Term as provided in the Term section. Unless Customer and PrimePay mutually agree to bill by alternative means, Customer authorizes PrimePay to automatically bill via a recurring Automated Clearing House (“ACH”) transaction. All payments are non-refundable. Unless specifically stated otherwise, all Fees are in US Dollars. Customer will be charged a fee of $110 for any returned payment, including but not limited to any check or ACH transaction that is deemed invalid due to insufficient funds. Any past due Fees shall bear interest at the greater of the rate of one and a half percent per month; or the maximum rate permitted by law. In the event of an uncured default, non-payment, or chargebacks, Customer shall be deemed in breach of these Terms and subject to Termination. Customer agrees to reimburse PrimePay for all costs expended to collect the Fees. In the event of delinquency on any Fees due, or in the event of Customer’s breach or termination of its PrimePay Subscription, Customer expressly authorizes and ratifies PrimePay’s right to collect the balance of any unpaid Fees due during the Term of Customer’s PrimePay Subscription, by collecting any amounts held in trust for payroll or tax, in addition to exercising any of PrimePay’s other rights and remedies provided in these Terms.  Any travel required for PrimePay to deliver the Products will be billed pursuant to the PrimePay travel policy, available on request. Unless otherwise stated, all discounts are one-time promotions and shall not apply beyond the promotional period listed in the promotional materials advertised by PrimePay, the accompanying terms and conditions of which shall herein be incorporated by reference. Individual promotions are offered one per Customer and may not be combined or swapped. Where Customer meets the stated requirements for a promotion purchased by Customer, the Promotional Terms and Conditions shall prevail over these Terms in the event of a conflict. Unless stated otherwise in a Quote, all Quotes shall expire on the last day of the calendar month in which they are issued.
4. Software Performance – PrimePay shall make reasonable efforts to provide the Products via web browser as a Software-as-a-Service (“SaaS”) or other electronic means of delivery, in substantial accordance with the most current product documentation, service descriptions, and user manuals published by PrimePay on its website or provided to Customer directly by PrimePay (collectively the “Documentation”). PrimePay reserves the right to modify the Products or discontinue parts of the Products, at its discretion. Customer acknowledges that PrimePay provides no warranty for Trial Products.
5. Product and Service Description – Documentation for the Products can be found at the following locations: Information regarding pricing, tiers, and features of payroll and HR bundled Products for new customers can be found at https://www.primepay.com/pricing. Existing customers shall be priced as listed on a Quote, subject to any price increases discussed in these Terms. Prices for ancillary products and services will be maintained on PrimePay’s Fee Schedule, a copy of which can be provided upon written request. Information regarding support, tiers, and features shall be found at https://support.primepay.com/s/. PrimePay’s support sites and knowledge bases may require user credentials to access. PrimePay reserves the right to modify the Documentation or discontinue parts of the Documentation at its discretion.
6. Support – PrimePay shall provide support for the Products and shall make its best efforts to resolve any issue caused by the Products during its normal business hours of 8 am to 8 pm Eastern Time, Monday through Friday, excluding PrimePay’s designated holidays. Issues caused by third-party applications or integrations, customizations, internet connectivity, Customer’s local infrastructure, Customer’s Data or Customer shall be outside the scope of PrimePay’s support obligations. PrimePay may offer additional support levels, which require a separate purchase in a Quote and shall be provided in accordance with the support descriptions found in the Documentation. Where PrimePay performs any support or installation (including but not limited to patches or updates) related to the Products or any third-party software, Customer authorizes PrimePay to click to accept any applicable terms and conditions (or updates thereto) on behalf of Customer. In order to provide support, quality control, and related services under your PrimePay Subscription, PrimePay may record audio and/or screen captures of support calls. Any such recordings will be kept confidential as per our Privacy Policy and maintained in accordance with our Document Retention Policy. Support for Trial Products shall be provided on limited, ad-hoc basis, at PrimePay’s sole discretion.
7. Third-Party Products and Services – Unless listed in a Quote, third-party products and services are not included in Customer’s PrimePay Subscription. Even where listed, third-party products and services are subject to limited warranties and support. In addition, where Customer makes Customer Data available to any third party, whether separately or in conjunction with its use of the Products, Customer agrees PrimePay shall not be responsible for any modification, deletion, or disclosure of such data. PrimePay Products may occasionally utilize third-party products and services. Where applicable, Customer agrees that the corresponding standard terms and conditions, and other attributions, shall apply to such products and services as described at https://primepay.com/terms/schedules/. From time to time, PrimePay, or third-parties, may make available certain third-party products or services (“Non-PrimePay Applications”), which are separate and independent from any Products listed on the Quote. Any use or acquisition of such Non-PrimePay Applications by Customer, and any exchange of data between Customer and a Non-PrimePay Application, is solely between Customer and such Non-PrimePay Application and Non-PrimePay Applications are neither warranted nor supported, regardless of whether they are designated as “certified” or otherwise.
8. myHRcounsel Products. This provision shall only apply where Customer has purchased myHRcounsel Products on a Quote. Where AskLegal, AskLegal+, or the learning management system (LMS) provided by myHRcounsel is listed on Customer’s Quote, those products and related services (collectively the “myHRcounsel Products”) shall be included in Customer’s PrimePay Subscription and subject to a twelve (12) month minimum Term billing commitment as well, a 30 day written notice requirement to terminate myHRcounsel Products included in Customer’s PrimePay Subscription following the twelve (12) month minimum Term Billing. The myHRcounsel Products shall be provided to Customer directly by myHRcounsel, and Customer expressly agrees to be bound by the myHRcounsel standard terms and conditions found at: https://myhrcounsel.com/terms/ (which shall herein be incorporated by reference). PrimePay is not a party to the terms between Customer and myHRcounsel, and as such PrimePay does not provide any express or implied warranty for myHRcounsel Products. Customer agrees that while PrimePay shall make the myHRcounsel Products available to Customer as part of their PrimePay Subscription, Customer acknowledges and agrees that PrimePay shall not be responsible or liable for providing any legal or other professional advice or service to Customer.
9. Professional Services – Where Customer requests PrimePay to deliver support, services, customization, implementation, migration, or any other deliverables that are outside the scope of Customer’s PrimePay Subscription (“Services”), such deliverables shall be rendered pursuant to a separate and distinct Statement of Work (“SOW”), at a separate cost, and governed by the terms and conditions set forth at  https://primepay.com/terms/service-terms/. For avoidance of doubt, billing for Fees on a recurring basis shall not be affected by the timing of delivery of any Services or SOW.
10. Customer Data – Information entered by Customer into the Products (“Customer Data”) shall at all times be owned, controlled, and maintained by Customer. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of Customer Data. Customer grants PrimePay a license to: (1) access Customer Data for the purposes of fulfilling any contractual obligations; and (2) to compile Customer Data in an anonymized form (“Aggregated Data”), as permitted by law and as may be described in PrimePay’s Privacy Policy. The Parties agree Aggregated Data is not Customer Data and shall be solely owned by PrimePay. Customer grants PrimePay a license to access Customer Data, and to disclose Customer Data to Partners as needed to perform its obligations under these Terms. Customer warrants that all Customer Data is collected, used, and stored in accordance with applicable laws governing data privacy. PrimePay will permanently delete Customer Data as soon as thirty (30) days after the termination of Customer’s PrimePay Subscription, but no later than as prescribed in PrimePay’s Document Retention Policy, unless otherwise agreed with Customer in writing. Where Customer is current on its Fees, Customer may download reports, as available within the Products, which contain Customer Data. Provided that Customer is fully paid up on all remaining Fees due for the remainder of the Term, Customer may request to purchase a copy of Customer Data which PrimePay shall provide via export in a .csv file, pursuant to the terms of a separate SOW and payment of the associated fees.
11. Customer Duties – Customer shall execute and/or provide all documentation and other information that PrimePay requires to provide the Products or otherwise perform its responsibilities under the Agreement. Where Customer fails to provide the information requested by PrimePay in a timely manner, this may result in delayed remittance of wages, taxes, and garnishments and additional processing fees, all of which shall be the exclusive liability of Customer. PrimePay shall not be responsible for errors that result from PrimePay’s reliance on any Customer-provided information. Customer shall review all reports, documents, and payments produced by PrimePay and inform PrimePay of any inaccuracies promptly (with respect to the nature of the information exchanged). PrimePay shall not be responsible for any damages or liabilities resulting from any omitted, delayed, or inaccurate Customer information. Customer further agrees to immediately to provide PrimePay with copies of any notices or correspondence received from any Federal, State or Local authority with respect to the Products. Customer shall also be liable and responsible for paying any fees, fines, or taxes relating to the Products.
12. Maintain Sufficient Funds. If necessary for the Products selected by Customer, Customer shall maintain sufficient funds in its designated account necessary for PrimePay to provide the applicable services. Customer authorizes PrimePay to withdraw from such designated account(s) as necessary to provide the Products. PrimePay shall not be liable in any instance where Customer fails to maintain sufficient funds in such account. PrimePay disclaims any obligation to advance Customer funds, but where PrimePay elects at its sole discretion to advance funds to ensure Customer meets its payroll or tax obligations, Customer agrees it shall be liable to: promptly pay the balance of the advanced funds, a $150 fee per transaction advanced by PrimePay, applicable processing fees related to such payment(s), and interest assessed against all unpaid amounts at the maximum interest rate permitted by law.
13. PrimePay Duties – PrimePay warrants that it has the legal right to enter into this Agreement and that it shall provide the Products to Customer during the Term in substantial accordance with the Documentation.
14. Confidentiality – Neither Party shall disclose the other Party’s information that is either marked confidential or, given its subject matter, would reasonably be regarded as being of a confidential nature (“Confidential Information”) to third parties without the Customer’s express written consent, unless legally required to do so. This section shall not apply to information that is independently developed by, publicly known by and available to, or information already in the possession of, the disclosing Party, so long as that information comes to the disclosing Party free from a duty of confidentiality or a breach thereof. Any disclosure of Customer Data to a PrimePay Partner in accordance with these Terms shall not be a breach of this Section.
15. Intellectual Property – Any patent, trademark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world, whether or not registered (collectively “Intellectual Property”) are rights solely and exclusively owned by PrimePay. Customer irrevocably grants to PrimePay sole and exclusive ownership over any suggestions, ideas, enhancement or development requests, feedback, or recommendations related to the Products provided by Customer or its agents. PrimePay’s logos, slogans, trade dressing and product logos belong to PrimePay and may not be used without PrimePay’s express written consent.
16. Term – This Agreement shall be effective immediately upon Customer’s execution of the Quote, conditioned on PrimePay’s acceptance of the Quote. The Term of Customer’s PrimePay Subscription commences on the date PrimePay first bills Customer for the Products, and shall continue for the minimum term length set forth in the corresponding Quote executed by Customer (“Initial Term”). Unless a longer period of time is expressly listed on the Quote, the Initial Term shall be twelve (12) months. Unless stated otherwise on the Quote (or if Customer’s remaining Term in its PrimePay Subscription is longer than twelve (12) months), if Customer executes a Quote during its term which adds Products onto its PrimePay Subscription, Customer’s PrimePay Subscription shall renew for a twelve (12) month Term, effective as of Customer’s acceptance of the Quote. ABSENT EITHER PARTY PROVIDING THE OTHER WITH NOTICE AT LEAST SIXTY (60) DAYS PRIOR TO THE EXPIRATION OF THE INITIAL TERM OR ANY SUBSEQUENT RENEWAL TERM, CUSTOMER’S PRIMEPAY SUBSCRIPTION WILL AUTOMATICALLY RENEW FOR A TWELVE (12) MONTH PERIOD (“RENEWAL TERM”). Any third-party products and services listed on the Quote shall be coterminous with the Term of Customer’s PrimePay Subscription.
17. Users – Each unique named individual authorized to use the Products on Customer’s behalf (“User”) must be licensed to use the Products. Customer must register each User with PrimePay by providing the User’s name and email and Customer must be responsible for maintaining User credentials including username and password. Customers may not share a User license between multiple individuals.
18. Suspension– PrimePay maintains the right to suspend Customer’s PrimePay Subscription and terminate access to the Products if Customer’s account is five (5) days past due. In such an event, Customer may lose access to Customer Data. Customer must make its account current in order to regain access to the Products and any Customer Data stored therein. While Customer’s PrimePay Subscription is suspended, PrimePay shall have no obligation to support or assist Customer or its Users.
19. Termination –The Products included in Customer’s PrimePay Subscription are sold for a guaranteed Term. Customer may not terminate its PrimePay Subscription for any reason other than a material breach of these Terms which remains uncured for sixty (60) days following Customer providing notice to PrimePay of the material breach and affording PrimePay a meaningful opportunity to cure, including cooperating with PrimePay support in order to identify, observe, and replicate the issue(s) which must be cured. Customer acknowledges and agrees that any alleged breach of a separate agreement or SOW for services shall not constitute a breach of these Terms or otherwise provide rights for Customer to terminate its PrimePay Subscription for cause. Where Customer terminates its PrimePay Subscription (or any part thereof) for any reason other than for cause, or where PrimePay terminates Customer’s PrimePay Subscription for Customer’s breach of a provision of these Terms, Customer shall pay the Early Termination Fee, which shall be equal to any remaining unpaid portion of the Fees for the remainder of Customer’s Term, accelerated and due immediately as of the date of Customer’s request for termination. Customer authorizes PrimePay to automatically collect, in advance, any associated fees due for the remainder of the Term of Customer’s PrimePay Subscription upon PrimePay’s receipt of a termination request. PrimePay may terminate Customer’s PrimePay Subscription for any reason by providing thirty (30) days’ Notice of termination, in which case PrimePay will return the unused portion of pre-paid fees. PrimePay reserves the right to terminate any Trial Products at any time without Notice. 
20. Fair Use Policy – By using the Products, Customer agrees not to: violate the law; commit fraud; infringe on the intellectual property rights of another; authorize or allow multiple individuals to share a User license; utilize APIs, third-party tools, or integrations in any way that subverts the controls or restrictions of the Products; extract information or data from the Products; license, sublicense, sell, resell, use as a service bureau, transfer, assign, distribute, or otherwise use or commercially exploit the Products for a third party’s benefit; provide data to PrimePay to process that Customer as the data controller does not have authorization to provide; disassemble, decompile, reverse engineer, copy, reproduce, modify, or create any derivative works of the Products; authorize or allow use of the Products by individuals outside Customer’s organization; or use the Products for any purpose that competes with PrimePay. Customer must at all times maintain responsibility and security for all User credentials, and make reasonable efforts to prevent unlawful access or use of the Products by anyone using its Users’ credentials. Customer must notify PrimePay immediately if Customer learns this policy has been violated.
21. Publicity – Customer agrees that PrimePay may use Customer’s company name and logo, and other non-confidential information shared by Customer, to positively promote PrimePay on its website or external marketing channels. The Parties agree to cooperate to create and distribute press releases and case studies promoting Customer’s use of the Products.
22. Referral Partners – Customer acknowledges and agrees that, from time to time, PrimePay may refer Customer and/or its employees to one of PrimePay’s third-party partners (“Referral Partners”) to possibly provide additional services which may be useful to Customer and/or its employees. If Customer and/or its employees acquires such services from any Referral Partner, Customer hereby consents to PrimePay providing such Referral Partner with the relevant contact information of Customer and/or its employees as PrimePay deems necessary for the purposes of a possible referral for additional services. Any bundled products or services offered by PrimePay with Referral Partners shall not automatically enroll Customer in such services with the Referral Partner and Customer shall be solely responsible for following the appropriate steps necessary to sign up for such additional services.
23. Non-Solicitation – Customer agrees it will not directly or indirectly recruit, solicit, or otherwise induce or attempt to induce any employee of PrimePay to terminate their employment. Customer acknowledges that if it breached this section and the relevant employee left their employment with PrimePay, it would be difficult to determine actual damages. Based on what the Parties presently know, they agree that an amount equal to 100% of the relevant employee’s annual salary is a reasonable estimate of the damages that would accrue if a breach of this provision occurred in the future and the relevant employee terminated his or her employment with PrimePay as a result. Customer agrees that the amount of liquidated damages is fair and reasonable and would not act as a penalty in such an instance.
24. Disclaimer of Warranty – PRIMEPAY ENDEAVOURS TO KEEP THE PRODUCTS OPERATING BUG-FREE, AND SAFE, BUT CUSTOMER ACKNOWLEDGES THAT ITS USE OF THE PRODUCTS IS AT ITS OWN RISK. PRIMEPAY PROVIDES THE PRODUCTS AS IS WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. PRIMEPAY DOES NOT GUARANTEE THAT THE PRODUCTS WILL ALWAYS FUNCTION WITHOUT DISRUPTIONS, DELAYS OR IMPERFECTIONS, INCLUDING BUT NOT LIMITED TO WHERE THE PRODUCTS ARE INTEGRATED OR COMBINED WITH THIRD-PARTY PRODUCTS AND SERVICES. PRIMEPAY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT THE PRODUCTS SATISFY ANY LEGAL OR COMPLIANCE REQUIREMENT IN ANY PARTICULAR JURISDICTION. Customer acknowledges and agrees that by providing the Products, PrimePay is not rendering any legal, human resource, benefit, tax, accounting or investment advice and therefore Customer should seek its own expert advisors for such matters. Customer acknowledges and agrees that any service provided by PrimePay relating to the Products is solely to support the Products, PrimePay shall have no obligation to provide expert support, advice, or expertise to Customer regarding the administration or operation of its human capital management outcomes. Customer further acknowledges and agrees that PrimePay is not a fiduciary under the Employee Retirement Income Security Act of 1974 (“ERISA”) PrimePay shall not be responsible for any liabilities, damages, errors, omissions or any other consequences resulting from CUSTOMER’S improper, unauthorized and/or misconstrued reliance on any such services or the Products performed by PrimePay. except as expressly warranted herein, ANY CLAIMS, PROMOTIONS, WARRANTIES OR REPRESENTATIONS IN ANY DEMONSTRATIONS OR OTHER COMMUNICATIONS, WRITTEN OR OTHERWISE, ARE EXPRESSLY DISCLAIMED HEREBY AND PRIMEPAY SHALL HAVE NO LIABILITY OR RESPONSIBILITY FOR CUSTOMER’S IMPROPER RELIANCE THERETO.
25. Limitation of Liability – WITH THE EXCEPTION OF ANY VIOLATION OF PRIMEPAY’S INTELLECTUAL PROPERTY RIGHTS BY CUSTOMER, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, LOSS OF BUSINESS OPPORTUNITY, BUSINESS INTERRUPTION, LOSS OF GOOD WILL, DAMAGE TO BUSINESS REPUTATION, LOSS OF BUSINESS INFORMATION, WORK STOPPAGE, LOSS OF DATA, COMPUTER FAILURE OR MALFUNCTION, OR OTHER SUCH PECUNIARY LOSS), WHETHER UNDER A THEORY OF CONTRACT, WARRANTY, TORT, OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL PRIMEPAY’S TOTAL AGGREGATE AND CUMULATIVE LIABILITY TO CUSTOMER CLAIMS ARISING FROM OR RELATED TO THESE TERMS, USE OF THE PRODUCTS, OR TO ANY ACT OR OMISSION OF PRIMEPAY, EXCEED THE AMOUNT CUSTOMER HAS PAID TO PRIMEPAY IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE APPLICABLE CLAIM. THIS LIMITATION OF LIABILITY APPLIES EQUALLY TO AFFILIATES AS DEFINED BELOW. THIS LIMITATION OF LIABILITY DOES NOT APPLY TO ANY LIABILITY WHICH THE PARTIES CANNOT LAWFULLY EXCLUDE PURSUANT TO APPLICABLE LAW. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PRIMEPAY AND CUSTOMER.
26. Indemnification – Customer shall fully indemnify, hold harmless and defend PrimePay and its directors, officers, employees, agents, stock holders, subsidiaries, and Affiliates from and against all claims demands, actions, suits, damages, liabilities, losses, settlements, judgments, costs and expenses (including but not limited to reasonable attorney’s fees and costs), whether or not involving a third party claim, which arises out of or relate to: any breach of any representation or warranty of Customer contained in these Terms; any breach or violation of any covenant or other obligation or duty of Customer under these Terms or under applicable law; and any violations of any applicable privacy laws caused by errors or omissions of Customer. PrimePay shall fully indemnify, hold harmless and defend Customer and its directors, officers, employees, agents, stock holders, subsidiaries, and Affiliates from and against all claims demands, actions, suits, damages, liabilities, losses, settlements, judgments, costs and expenses (including but not limited to reasonable attorney’s fees and costs), involving a claim that the Products infringe on the intellectual property rights of a third party, except where Customer’s conduct is the cause of the alleged infringement. Where the Products are held to infringe the intellectual property rights of a third party, in order to cease the infringement, PrimePay shall, at its election, either: modify the Products, procure the necessary license for Customer to continue to use the Products, or terminate the Agreement.
27. Assignment – Customer shall not directly or indirectly assign its rights or obligations under these Terms without PrimePay’s prior written consent. PrimePay may assign or transfer any of its rights or obligations under these Terms without the prior written consent of the Customer. Any assignment made not in accordance with this section shall be void and ineffective.
28. Policies and Compliance – PrimePay maintains internal policies intended to ensure PrimePay’s compliance with applicable laws and regulations. Samples of PrimePay policies may be requested in writing addressed to notice@primepay.com.
29. Severability – If any provision of these Terms is held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
30. Final Agreement – These Terms, the Documentation, and any fully executed Quote between PrimePay and Customer (the “Agreement”) set forth the entire agreement relating to the subject matter hereof and supersede all prior agreements, discussions and understandings between them, whether oral or written, relating to the subject matter hereof. These Terms supersede any prior agreements between PrimePay and Customer. Notwithstanding the foregoing, to the extent Customer has any past due balance for fees owed to PrimePay under any prior agreement for PrimePay products or services, such past due balance shall remain due and payable as part of the Fees owed by Customer pursuant to the Agreement. No waiver of any provision of these Terms shall be construed as a waiver of PrimePay’s rights to enforce that or any other provision.
31. Governing Law – EXCEPT WHERE PROHIBITED BY LAW, PRIMEPAY AND CUSTOMER AGREE THAT EACH PARTY MAY ONLY BRING CLAIMS AGAINST THE OTHER PARTY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. NO ARBITER OR JUDGE MAY CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS UNDER THESE TERMS AGAINST EITHER PARTY TO THIS AGREEMENT WITHOUT THE WRITTEN CONSENT OF BOTH PARTIES. The Parties agree that any claim arising out of these Terms or use of the Products (including any non-contractual disputes, acts or omissions, or claims in contract, tort, or otherwise), shall be construed under the laws of the State of Pennsylvania, regardless of conflict of law provisions. The Parties irrevocably consent to the exclusive venue of the state or federal courts of Chester County Pennsylvania. Neither party will bring any legal action more than two years after the cause of action arose. The Parties agree that a condition precedent to instituting any legal action other than the filing of an injunction to protect a Party’s intellectual property rights, the Parties must participate in a non-binding mediation, with the parties equally splitting the costs of that mediation.
32. Prevailing Party – In the event of any litigation arising out of or related to these Terms or the Products, the prevailing party shall be entitled to recover from the non-prevailing party all costs and expenses associated with such proceedings, including reasonable attorney’s fees. For purposes of this provision, if a claim made by either Party is deemed to be filed in the improper forum, jurisdiction, or venue, the non-filing party shall be deemed the prevailing party in that action.
33. Modifications – PrimePay may make modifications to the Products or component parts (including but not limited to discontinuing a component), at its sole discretion, from time to time, without notice to Customer. Such modifications shall not be deemed to be a breach of these Terms and PrimePay shall not be liable for such modifications. PrimePay reserves the right to routinely update, amend or change these Terms upon Notice to Customer. Following a Notice under this Section, Customer’s continued use of the Products shall serve as consent to the modifications to the Terms.
34. Notices – Notices shall be defined as provided in this section. All notices to Customer under these Terms will be deemed given when delivered in writing via e-mail, billing statement, or in-app messaging to an authorized Customer e-mail address as provided by Customer (for billing or other purposes) or as listed in a Quote. All notices to PrimePay under these Terms will be deemed given when delivered via e-mail to notice@primepay.com.
35. Data Processing Addendum; Privacy Policy – Where applicable, the terms of any applicable supplementary contracts, as set forth at https://primepay.com/terms/schedules/, and the Online Privacy Policy and Information Security Statement, set forth at https://primepay.com/privacy-policy/, are expressly incorporated into these Terms by reference.
36. Audit – Customer shall maintain, during the Term of its PrimePay Subscription and for one (1) year after, complete, accurate and detailed records regarding its use of the Products. Customer shall pay the associated fees at list price for any unauthorized use of the Products discovered by PrimePay.
37. Export Control – The Products are subject to U.S. and foreign export control laws. Customer shall not ship, transfer, export or re-export the Products into any country, or use them in any fashion prohibited by the United States Export Administrations Act or Regulations or any other applicable laws, restrictions, or regulations.
38. Regulatory Compliance – Customer warrants that neither Customer nor any of its directors, beneficial owners, or individuals with a controlling interest in Customer is a sanctioned person or a director in a sanctioned entity, and that Customer shall ensure Customer and its agents shall at all times comply with all applicable sanctions laws and regulations. Customer agrees that it will provide information and documentation reasonably requested by PrimePay in order to conduct regulatory compliance checks, which may involve the processing of information by third party vendors, and warrants that such information is accurate and up-to-date, and Customer shall notify PrimePay if any of the information provided changes. In the event of any subpoena, audit, or regulatory request, Customer authorizes PrimePay to provide the information as requested to the requesting party, without any notice to Customer. For purposes of clarity, this Section shall supersede any other commercial agreement or NDA executed between the Parties. If Customer is determined to be in a high-risk industry, high-risk goods or high-risk jurisdiction, at PrimePay’s sole discretion, Customer acknowledges that PrimePay may perform an enhanced due diligence process, with or without notice to Customer, and agrees to cooperate and provide all documentation requested.
39. Affiliates – PrimePay may use subsidiaries, subcontractors, partners, affiliates, and sub processors (collectively “Partners”) to provide the Products, without prior notice or consent. All entities described in this section shall be subject to the same limitations of liability set forth above. PrimePay shall at all times remain responsible for the performance of the Products.
40. Supplementary Agreements – If Payroll Services, Tax Services, Pre-Tax Reimbursement Solutions, COBRA Solutions, or ERISA Solutions are selected on a Quote, PrimePay shall provide those Products in accordance with the applicable terms found at https://primepay.com/terms/schedules/, which are herein incorporated by reference.