TERMS OF SERVICE AGREEMENT 

Customer and RABco agree that the terms and conditions set forth below shall apply to the RABco supply of the commercially available version of the UKG Workforce Ready® SaaS Applications in UKG’ hosting environment or the Execupay PPX Application hosted in Execupay’s hosting environment, the services related thereto, and the sale or lease of Equipment (if any) specified on a RABco Order Form.  The Applications described on the Order Form shall be delivered by means of Customer’s permitted access to the infrastructure hosting such Applications. 

BY MANUALLY OR ELECTRONICALLY EXECUTING AN INITIAL ORDER FORM REFERENCING THESE TERMS AND CONDITIONS OR TO WHICH THESE TERMS ARE ATTACHED, CUSTOMER AGREES TO THESE TERMS AND CONDITIONS FOR ALL ORDER FORMS.  THE INDIVIDUAL ACCEPTING THESE TERMS AND CONDITIONS ON BEHALF OF CUSTOMER REPRESENTS THAT HE/SHE HAS THE AUTHORITY TO CONTRACTUALLY BIND CUSTOMER. THESE TERMS AND CONDITIONS AND THE ORDER FORM(S) (AND ANY ATTACHMENTS THERETO) TOGETHER FORM A BINDING AND EXECUTED WRITTEN AGREEMENT BETWEEN CUSTOMER AND RABCO PAYROLL SERVICES INC.  

1. DEFINITIONS
   “Agreement” means these terms and conditions and the Order Form(s).
   
   “Application(s)” or “SaaS Application(s)” means those proprietary and licensed software application programs set forth on an Order Form which are made accessible for Customer to use under the terms of this Agreement.  “Billing Start Date” means the date the billing of the Per Frequency Service Fees commences as indicated on the applicable Order Form.  The Billing Start Date of the Per Frequency Service Fees for any Services ordered by Customer after the date of this Agreement which are incremental to Customer’s then-existing Services shall be the date the applicable Order Form is executed by RABco and Customer.
   
   “Confidential Information” means any non-public information of a party or its Suppliers relating to such entity’s business activities, financial affairs, technology, marketing or sales plans that is disclosed pursuant to this Agreement and reasonably should have been understood by the receiving party, because of (i) legends or other markings, (ii) the circumstances of disclosure or (iii) the nature of the information itself, to be proprietary and confidential to the disclosing party or its Suppliers.
   
   “Customer Content” means all content Customer, or others acting on behalf of or through Customer, posts or otherwise inputs into the Services.
   
   “Documentation” means technical publications published by RABco relating to the use of the Services.
   
   “Educational Content” has the meanings ascribed in Section 7.3.
   
   “Equipment” means the RABco equipment purchased or lease by Customer under this Agreement.
   
   “Initial Term” means the initial term of the Services as indicated on the Order Form.
   
   “Material Breach” means a non-performance of duty that is so material and important to the Agreement and the commitments made therein as to justify the injured party terminating the agreement as a remedy for the wrong or non-performance. Whether a Material Breach occurred must be answered by weighing the consequences in the light of the actual custom of parties in the performance of legally binding agreements similar to the one that is involved in the relationship.
   
   “Minimum Contract Value” means the total of all Per Frequency Service Fees to be invoiced during the Initial Term or a Renewal Term, as applicable.
   
   “Per Frequency Service Fee(s)” means the Per Frequency fees described in an Order Form.  Per Frequency Service Fees include fees for usage of the Applications, the Services, and Equipment lease, if any.  Billing of the Per Frequency Service Fee(s) commences on the Billing Start Date. 
   
   “Billing Frequency” is identified on the Order Form, and each Billing Frequency necessitates a Per Frequency Service Fee as specified on the Order Form. 
   
   “Billing Start Date” is identified on the Professional Services Engagement Overview, or in the absence of specification the Billing Start Date is 30 days from the date that you pay your Setup Fee. 
   
   “Order Form” means an order form mutually agreed upon by RABco and Customer setting forth the items ordered by Customer and to be provided by RABco and the fees to be paid by Customer.
   
   “Personally Identifiable Data” means information concerning individually identifiable employees of Customer that is protected against disclosure under applicable law or regulation. 
   
   “Renewal Term” means the renewal term of the Services as indicated on the Order Form.
   
   “Services” means (i) accessibility to the commercially available version of the Applications by means of access to the password protected customer area of a RABco website, and all such services, items and offerings accessed by Customer therein, and (ii) the Equipment lease hereunder, if any.
   
   “Supplier” means any contractor, subcontractor or licensor of RABco providing software, equipment and/or services to RABco which are incorporated into or otherwise related to the Services. “Term” means the Initial Term and any Renewal Terms thereafter.
    
2. TERM
   
   1. The Services shall commence on the Billing Start Date, and shall continue for the Initial Term or until terminated in accordance with the provisions hereof.  At the expiration of the Initial Term and each Renewal Term as applicable, the Services shall automatically renew for additional Renewal Terms until terminated in accordance with the provisions hereof.
   2. Customer may terminate the Services and this Agreement for convenience upon ninety (90) days prior written notice subject to Customer’s payment of the Minimum Contract Value.  RABco may terminate the Services and this Agreement, effective at the expiration of the then current Term upon at least sixty (60) days prior written notice.
   3. Either party may terminate the Services and the Agreement upon a Material Breach of the Agreement by the other party if such breach is not cured within fifteen (15) days after receipt of written notice.  Notwithstanding the foregoing, RABco may suspend the Services immediately upon notice in the event of any Customer breach of Sections 4 (Rights to Use), 5 (Acceptable Use), or 15 (Confidential Information). 
   4. In the event that either party becomes insolvent, makes a general assignment for the benefit of creditors, is adjudicated a bankrupt or insolvent, commences a case under applicable bankruptcy laws, or files a petition seeking reorganization, the other party may request adequate assurances of future performance.  Failure to provide adequate assurances, in the requesting party’s reasonable discretion, within ten (10) days of delivery of the request shall entitle the requesting party to terminate the Agreement immediately upon written notice to the other party.
   5. If the Agreement is terminated for any reason: 
       
      1. (a) Customer shall pay RABco within thirty (30) days of such termination, all fees accrued under this Agreement prior to the effective date of such termination, provided however, if Customer terminates for Material Breach of the Agreement by RABco, RABco shall refund Customer any pre-paid fees for services not delivered by RABco;
      2. (b) Customer’s right to access and use the Applications shall be revoked and be of no further force or effect and return leased Equipment as provided in Section 9.1 below;
      3. (c) No more than fifteen (15) days after termination (or upon Customer’s written request at any time during the Term), RABco will make available to Customer, at no charge to Customer, the Customer Content. After such time period, RABco shall have no further obligation to store or make available the Customer Content and will securely delete any or all Customer Content without liability;
      4. (d) Customer agrees to timely return all RABco-provided materials related to the Services to RABco at Customer’s expense or, alternatively, destroy such materials and provide RABco with an officer’s certification of the destruction thereof; and
      5. (e) All provisions in the Agreement, which by their nature are intended to survive termination, shall so survive.
         
         
3. FEES AND PAYMENT
   
   1. Customer shall pay RABco the Setup Fees, the Per Frequency Service Fees and any additional one time, setup or recurring fees, all as defined on the Order Form or subject to Section 17.10 below.  Billing will commence on the Billing Start Date with the Per Frequency Service Fees to be billed on the frequency set forth on the Order Form (“Billing Frequency”).  Unless otherwise indicated on the Order Form, RABco will bill and collect payment from Customer for all implementation services in advance.  Purchased Equipment will be billed upon shipment of such Equipment.  Customer authorizes RABco to automatically debit the account through an ACH withdrawal or charge the card on file with RABco in an amount equal to the Per Frequency Service Fees as all such fees become due under this Agreement without additional notice or consent by Customer.  Per Frequency Service Fees shall be due and payable immediately upon close of specified frequency, as defined in Order Form.

      Except as expressly set forth in the Agreement, all amounts paid to RABco are non-refundable.  Customer is responsible for all applicable taxes relating to the goods and services provided by RABco hereunder (including without limitation GST and/or VAT if applicable), excluding taxes based on RABco‘ income or business privilege.

   2. Setup Fees are due upon execution of these Terms of Service and no implementation under these Terms of Service shall occur until this payment is received. Customer acknowledges that Setup Fees may be charged to Customer by third parties for Add-on Features.  Third party setup, Per Frequency Service Fees, fees shall be set forth on an Order Form or subject to Section 17.10 below.  Per Frequency Service fees shall be based on periods that begin on the Billing Start Date.  Per Frequency Service Fees shall include fees for Equipment lease, if any.  Per Frequency Service Fees for Services added on or before the last day of a given frequency (be it a month, week or other frequency) will be charged for that full frequency period and each period of the Term thereafter; RABco will audit Customer’s “Usage” of the Services (as defined below) in order to calculate the Usage portion of the Per Frequency Service Fees to be charged.  Usage of the Services, depending on applicable features, components, or services, shall be priced as identified on the Order Form either on a: (a) per frequency basis; (b) per active employee (herein “Active Employee”) per month usage basis; (c) per transaction basis (e.g.: pay statement); or, (d) per access point.  For purposes of the Agreement, an employee shall be deemed an Active Employee during any applicable billing period if through the Services: (i) time has been entered for such employee; (ii) records have been included for such employee for the purpose of processing payroll; (iii) records have been included for such employee within an import/export process; (iv) such employee has accessed the Services, regardless of the purpose; (v) benefit time has been accrued for such employee; or (vi) such employee has been marked by Customer as having an “Active” status during the period.
   3. Customer agrees that except in those circumstances in which Customer is entitled to invoke the termination for cause provision set forth in Section 2.3 above, in consideration of RABco‘ delivery of the Services on a variable fee basis, Customer agrees to pay RABco each billing frequency during the Term in which charges accrue no less than the minimum billing frequency fees (“Minimum Billing Frequency Fees”) which shall be calculated by RABco based the amounts identified on all Order Forms for Customer’s Usage of the Services, plus Equipment lease fees, if any.  In the event that Customer does not reach the anticipated Usage upon which the Minimum Billing Frequency Fees was based for any given billing frequency during the Term, Customer shall remain responsible for paying the Minimum Billing Frequency Fees for that billing frequency.  If an Order Form or the Agreement is suspended by RABco for non-payment or otherwise terminated by RABco for cause, Customer shall remain liable to pay the applicable Minimum Billing Frequency Fees up to and including the last day of the billing frequency in which the effective date of termination occurs.
   4. If any amount owing under this or any other agreement between the parties is thirty (30) or more days overdue, RABco may, without limiting RABco‘ rights or remedies, suspend Services until such amounts are paid in full.  RABco will provide at least seven (7) days’ prior written notice that Customer’s account is overdue before suspending Services.
   5. At the later of (i) one (1) year after the effective date of this Agreement, or (ii) expiration of the Initial Term, and at each annual anniversary of that date thereafter, RABco may increase the Per Frequency Service Fee rates in an amount not to exceed five percent (5%).  The increased Per Frequency Service Fees will be reflected in the next invoice following the effective date of such increase without additional notice.
   6. Customer agrees that except if Customer terminates for Material Breach of the Agreement by RABco, if Customer has not paid the Minimum Contract Value to RABco prior to the expiration or termination of the Initial Term or a Renewal Term, as applicable, Customer shall pay within thirty (30) days of the date of such expiration or termination, the difference between the total Monthly Service Fees then paid by Customer for the Initial Term or Renewal Term, as applicable, and the Minimum Contract Value.
4. RIGHTS TO USE
   1. Subject to the terms and conditions of the Agreement, RABco hereby grants Customer a limited, revocable, non-exclusive, non-transferable, non-assignable right to use during the Term and for internal business purposes only: a) the Applications and related services, including the Documentation and training materials; and, b) any embedded third party software, libraries, or other components, which form a part of the Services. The Services contain proprietary trade secret technology of RABco and its Suppliers.  Unauthorized use and/or copying of such technology are prohibited by law, including United States and foreign copyright law.  Customer acknowledges and agrees that the right to use the Services is limited based upon authorized Usage and the amount of the Billing Frequency Service Fees to be paid by Customer.  Customer agrees to use only the modules and/or features described on the Order Form.  Customer agrees not to use any other modules or features unless Customer has licensed such additional modules or features. Customer may not provide service bureau or other data processing services that make use of the Services without the express prior written consent of RABco.  No license, right, or interest in any RABco trademark, trade name, or service mark, or those of RABco‘ licensors or Suppliers, is granted hereunder.  When using and applying the information generated by the Services, Customer is responsible for ensuring that Customer complies with applicable laws and regulations.Customer agrees not to: (i) use the Services other than as authorized in this Agreement; (ii) use any device, software, or routine that interferes with any application, function, or use of the Service, or is intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or communication; (iii) resell, sublicense, time-share, or otherwise share, including timesharing or networking use, the Services with any third party except as permitted under 4.2; (iv) frame or mirror the Service; (v) decompile, disassemble or reverse-engineer the underlying software or application that is part of the Service or otherwise attempt to derive its source code; (vi) use the Services either directly or indirectly to support any activity that is illegal; (vi) access the Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes; or (vii) authorize any third parties to do any of the above.
      
      
   2. Customer may authorize its third party contractors and consultants to access the Services through Customer’s administrative access privileges on an as needed basis, provided Customer: a) abides by its obligations to protect Confidential Information as set forth in this Agreement; b) remains responsible for all such third party usage and compliance with the Agreement; and c) does not provide such access to a competitor of RABco who provides workforce management services. 
   3. Customer acknowledges and agrees that, as between Customer and RABco, RABco retains ownership and permissions of all right, title and interest to the Services, all of which are protected by copyright and other intellectual property rights, and that, other than the express rights granted herein and under any other agreement in writing with Customer, Customer shall not obtain or claim any rights in or ownership interest to the Services or any associated intellectual property rights in any of the foregoing.  Customer agrees to comply with all copyright and other intellectual property rights notices contained on or in any information obtained or accessed by Customer through the Services. 
   4. RABco will make updates and upgrades to the Services (tools, utilities, improvements, third party applications, general enhancements) available to Customer at no charge as they are released generally to its customers as part of the Services.  Customer agrees to receive those updates automatically as part of the Services.  RABco also may offer new products and/or services to Customer at an additional charge.  Customer shall have the option of purchasing such new products and/or services under a separate Order Form or Change Order Form in accordance with Section 17.10 below.
   5. RABco reserves the right to change the Services, in whole or in part, including but not limited to, the Internet based services, technical support options, and other Services-related policies.  Customer’s continued use of the Services after RABco posts or otherwise notifies Customer of any changes indicates Customer’s agreement to those changes.
5. ACCEPTABLE USE
   1. Customer shall take all reasonable steps to ensure that no unauthorized persons have access to the Services, and to ensure that no persons authorized to have such access shall take any action that would be in violation of this Agreement.
   2. Customer represents and warrants to RABco that Customer has the right to publish and disclose the Customer Content in connection with the Services.  Customer represents and warrants to RABco that the Customer Content: (a) does not infringe or violate any third-party right, including but not limited to intellectual property, privacy, or publicity rights, (b) is not abusive, profane, or offensive to a reasonable person, or, (c) is not hateful or threatening.
   3. Customer will not (a) use, or allow the use of, the Services in contravention of any federal, state, local, foreign or other applicable law, or rules or regulations of regulatory or administrative organizations; (b) introduce into the Services any virus or other code or routine intended to disrupt or damage the Services, or alter, damage, delete, retrieve or record information about the Services or its users; (c) excessively overload the RABco systems used to provide the Services; (d) perform any security integrity review, penetration test, load test, denial of service simulation or vulnerability scan; (e) use any tool designed to automatically emulate the actions of a human user (e.g., robots); or, (f) otherwise act in a fraudulent, malicious or negligent manner when using the Services.
6. CONNECTIVITY AND ACCESS
   Customer acknowledges that the operation and availability of the communications systems used for accessing and interacting with the Services or to transmit information to the taxing authorities can be unpredictable and may, from time to time, interfere with or prevent access to the Services or its operation. Customer shall (a) be responsible for securing, paying for, and maintaining connectivity to the Services (including any and all related hardware, software, third party services and related equipment and components); and (b) provide RABco and RABco‘ representatives with such physical or remote access to Customer’s computer and network environment as RABco deems reasonably necessary in order for RABco to perform its obligations under the Agreement.  Customer will make all necessary arrangements as may be required to provide access to Customer’s computer and network environment if necessary for RABco to perform its obligations under the Agreement.  RABco is hereby (i) granted access to such Customer data to perform its obligations under the Agreement and (ii) authorized to audit the number of Active Employee counts or other transactions that have occurred to measure Usage.  In the event of any failure of such software, hardware or other equipment, Customer will deliver to RABco all data which Customer would otherwise have provided that is necessary for RABco to perform RABco’s obligations in connection with the Services.
7. IMPLEMENTATION AND SUPPORT
   1. Implementation.  RABco will configure the Services utilizing scheduled remote resources. Software module configuration will be based on information and work flows obtained from Customer during the discovery portion of the implementation.  Customer shall provide RABco with necessary configuration related information in a timely manner to ensure that mutually agreed implementation schedules are met.  RABco and Customer’s implementation responsibilities are described more specifically in the Rabco Implementation Guideline.
   2. Standard Support. RABco will provide telephone support 8:30 a.m. to 5:00 p.m. PST, Monday – Friday.  Customers also shall be provided the capability to log questions to our support team using support@rabcopayroll.com at any time
   3. Equipment Support.  If Equipment is leased in accordance with Section 9.1 below or if Equipment Support Services are purchased for Equipment purchased in accordance with Section 9.2 below, RABco will provide the following Depot Exchange Support Services to Customer:
      1. (a)  Upon the failure of installed Equipment, Customer shall notify RABco of such failure and RABco will provide remote fault isolation at the FRU (Field Replacement Unit) or subassembly level and attempt to resolve the problem. Those failures determined by RABco to be Equipment related shall be dispatched to a RABco Depot Repair Center, and Customer will be provided with a Return Material Authorization Number (RMA) for the failed Equipment if Customer is to return the failed Equipment to RABco, as reasonably determined by RABco. Customer must return the failed Equipment with the supplied RMA number. Hours of operation, locations and other information related to RABco‘ Depot Repair Centers are available upon request and are subject to change. Return and repair procedures for failed Equipment shall be provided based on the Depot option – Depot Exchange or Depot Repair – selected by Customer on the applicable Order Form and as specified herein and in RABco‘ then-current Support Services Policies.
      2. (b)  RABco will provide a replacement for the failed Equipment at the FRU or subassembly level on an “advanced exchange” basis, utilizing a carrier of RABco‘ choice. Replacement Equipment will be shipped the same day, for delivery to Customer’s location as further described in the Support Policies. REPLACEMENT EQUIPMENT MAY BE NEW OR RECONDITIONED. Customer shall specify the address to which the Equipment is to be shipped. All shipments will include the RABco provided RMA designating the applicable RABco Depot Repair Center, as the recipient. Customer, upon receipt of the replacement Equipment from RABco, shall package the defective Equipment in the materials provided by RABco, with the RMA supplied and promptly return failed Equipment directly to RABco.
      3. (c)  Equipment support also includes Customer access to Equipment service packs via the RABco Customer Portal.
   4. Educational Materials and Content.  Customer will have access to certain educational materials and content (the “Educational Content”) within the Services.  Customer recognizes and agrees that the Educational Content is copyrighted by RABco. Customer is permitted to make copies of the Educational Content provided in *pdf form solely for Customer’s internal training purposes and may not disclose such Educational Content to any third party other than Customer’s employees. Customer may not edit, modify, revise, amend, change, alter, customize or vary the Educational Content without the written consent of RABco, provided that Customer may download and modify contents of Training Kits solely for Customer’s internal use.
8. CUSTOMER CONTENT
   Customer shall own all Customer Content.  RABco acknowledges that all of the Customer Content is deemed to be the Confidential Information of Customer.  Notwithstanding the foregoing, Customer grants RABco permission to combine Customer’s business data with that of other customers in a manner that does not identify the Customer or any individual in order to evaluate and improve the services RABco offers to customers.  In addition, RABco may, but shall have no obligation to, monitor Customer Content from time to time to ensure compliance with the Agreement and applicable law.
   RABco, its employees and agents will hold in strict confidence all data furnished by Customer or produced by RABco on behalf of Customer pursuant to this Agreement; provided, however, that such RABco will not be held liable if such data is released through other sources, or if RABco, its employees and agents release the data because of a reasonable belief that Customer consented to such disclosure.
9. EQUIPMENT
   If Customer purchases or leases Equipment from RABco, a description of such Equipment (model and quantity), the applicable pricing, and delivery terms shall be listed on the Order Form.
   1. Leased Equipment. The following terms apply only to Equipment Customer leases from RABco: 
      1. (a)  Lease Term and Warranty Period.  The term of the Equipment lease and the “Warranty Period” for such Equipment shall run coterminously with the Term of the other Services provided under the Agreement.
      2. (b)  Insurance.   Customer shall insure the Equipment for an amount equal to the replacement value of the Equipment for loss or damage by fire, theft, and all normal extended coverage at all times.  No loss, theft or damage after shipment of the Equipment to Customer shall relieve Customer from Customer’s obligations under the Agreement.
      3. (c)  Location/Replacement.  Customer shall not make any alterations or remove the Equipment from the place of original installation without RABco‘ prior written consent.  RABco shall have the right to enter Customer’s premises to inspect the Equipment during normal business hours.  RABco reserves the right, at its sole discretion and at no additional cost to Customer, to replace any Equipment with newer or alternative technology Equipment as long as the replacement Equipment at least provides the same level of functionality as that being replaced.
      4. (d) Ownership.  All Equipment shall remain the property of RABco.  All Equipment is, and at all times shall remain, separate items of personal property, notwithstanding such Equipment’s attachment to other equipment or real property.  Customer shall not sell or otherwise encumber the Equipment.  Customer shall furnish any assurances, written or otherwise, reasonably requested by RABco to give full effect to the intent of terms of this paragraph (d).
      5. (e)  Equipment Support.  RABco shall provide to Customer the Equipment support services described in Section 7.
      6. (f)  Return of Equipment.  Upon termination of the Agreement or the applicable Order Form, Customer shall return, within thirty (30) days of the effective date of termination and at Customer’s expense, the Equipment subject to this Section 9.1.  Equipment will be returned to RABco in the same condition as and when received, reasonable wear and tear excepted.  If Customer fails to return Equipment within this time period, upon receiving an invoice from RABco, Customer shall pay RABco the then list price of the unreturned Equipment.
   2. Purchased Equipment. The following terms apply only to Equipment Customer purchases from RABCo: 
      1. (a)   Ownership and Warranty Period.  Title to the Equipment shall pass to Customer upon delivery to the carrier.  The “Warranty Period” for the Equipment shall be for a period of ninety (90) days from such delivery (unless otherwise required by law).
      2. (b)  Equipment Support. RABco shall provide to Customer the Equipment support services described in this Agreement if purchased separately by Customer as indicated on the applicable Order Form.  If purchased, Equipment support services have a term of one (1) year commencing upon expiration of the Warranty Period.  Equipment support services will be automatically extended for additional one year terms on the anniversary of its commencement date (“Renewal Date”), unless either party has given the other thirty (30) days written notification of its intent not to renew. RABco may change the annual support charges for Equipment support services effective at the end of the initial one (1) year term or effective on the Renewal Date, by giving Customer at least thirty (30) days prior written notification.
10. SERVICE LEVEL AGREEMENT
    RABco shall: (a) provide basic support for the Services, (b) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (i) planned downtime or (ii) any unavailability caused by circumstances beyond RABco‘ reasonable control, including without limitation, acts of nature, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving RABco employees), internet service provider failures or delays, or denial of service attacks, and (iii) provide Services in accordance with applicable laws and government regulations.
11. LIMITED WARRANTY; DISCLAIMERS OF WARRANTY
    1. RABco represents and warrants to Customer that the Services, under normal operation as specified in the Documentation and when used as authorized herein, will perform substantially in accordance with such Documentation during the Term.
    2. RABco’s sole obligation and Customer’s sole and exclusive remedy for any breach of the foregoing warranty is limited to RABco’s reasonable commercial efforts to correct the non-conforming Services at no additional charge to Customer. In the event that RABco is unable to correct material deficiencies in the Services arising during the Warranty Period, after using RABco‘ commercially reasonable efforts to do so, Customer shall be entitled to terminate the then remaining Term of the Agreement as Customer’s sole and exclusive remedy.  RABco‘ obligations hereunder for breach of warranty are conditioned upon Customer notifying RABco of the Material Breach in writing, and providing RABco with sufficient evidence of such non-conformity to enable RABco to reproduce or verify the same.
    3. RABco warrants to Customer that each item of Equipment shall be free from defects in materials and workmanship during the Warranty Period.  In the event of a breach of this warranty, Customer’s sole and exclusive remedy shall be RABco‘ repair or replacement of the deficient Equipment, at RABco‘ option, provided that Customer’s use, installation and maintenance thereof have conformed to the Documentation for such Equipment. This warranty is extended to Customer only and shall not apply to any Equipment (or parts thereof) in the event of:
       1. (a) damage, defects or malfunctions resulting from misuse, accident, neglect, tampering, (including without limitation modification or replacement of any RABco components on any boards supplied with the Equipment), unusual physical or electrical stress or causes other than normal and intended use;
       2. (b) failure of Customer to provide and maintain a suitable installation environment, as specified in the published specifications for such Equipment; or
       3. (c) malfunctions resulting from the use of badges or supplies not approved by RABco. EXCEPT AS PROVIDED FOR IN THIS SECTION 11, RABCO HEREBY DISCLAIMS ALL WARRANTIES, CONDITIONS, GUARANTIES AND REPRESENTATIONS RELATING TO THE SERVICES, EXPRESS OR IMPLIED, ORAL OR IN WRITING, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WHETHER OR NOT ARISING

          THROUGH A COURSE OF DEALING.  THE SERVICES ARE NOT GUARANTEED TO BE ERRORFREE OR UNINTERRUPTED.  EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, RABCO MAKES  NO WARRANTIES OR REPRESENTATIONS CONCERNING THE COMPATIBILITY OF THE SERVICES, THE SAAS APPLICATIONS OR THE EQUIPMENT NOR ANY RESULTS TO BE ACHIEVED THEREFROM.

12. DATA SECURITY 
    1. As part of the Services, RABco shall provide administrative, physical, and technical safeguards for the protection of the security, confidentiality and integrity of Customer data.  Customer acknowledges that such safeguards endeavor to mitigate security incidents, but such incidents may not be mitigated entirely or rendered harmless.  Customer should consider any particular RABco supplied security-related safeguard as just one tool to be used as part of Customer’s overall security strategy and not a guarantee of security.  Both parties agree to comply with all applicable privacy or data protection statutes, rules, or regulations governing the respective activities of the parties under the Agreement.  
    2. As between Customer and RABco, all Personally Identifiable Data is Customer’s Confidential Information and will remain the property of Customer.  Customer represents that to the best of Customer’s knowledge such Personally Identifiable Data supplied to RABco is accurate.  Customer hereby consents to the use, processing or disclosure of Personally Identifiable Data by RABco and RABco‘ Suppliers wherever located only for the purposes described herein and only to the extent such use or processing is necessary for RABco to carry out RABco‘ duties and responsibilities under the Agreement or as required by law.
    3. Prior to initiation of the Services under the Agreement and on an ongoing basis thereafter, Customer agrees to provide notice to RABco of any extraordinary privacy or data protection statutes, rules, or regulations which are or become applicable to Customer’s industry and which could be imposed on RABco as a result of provision of the Services.  Customer will ensure that: (a) the transfer to RABco and storage of any Personally Identifiable Data by RABco or RABco‘ Supplier’s data center is permitted under applicable data protection laws and regulations; and, (b) Customer will obtain consents from individuals for such transfer and storage to the extent required under applicable laws and regulations.
13. INDEMNIFICATION
    1. RABco shall defend Customer and its respective directors, officers, and employees (collectively, the “Customer Indemnified Parties”), from and against any and all notices, charges, claims, proceedings, actions, causes of action and suits, brought by a third party (each a “Claim”) alleging that the permitted uses of the Services infringe or misappropriate any United States or Canadian copyright or patent and will indemnify and hold harmless the Customer Indemnified Parties against any liabilities, obligations, costs or expenses (including without limitation reasonable attorneys’ fees) actually awarded to a third party as a result of such Claim by a court of applicable jurisdiction or as a result of RABco‘ settlement of such a Claim.  In the event that a final injunction is obtained against Customer’s use of the Services by reason of infringement or misappropriation of such copyright or patent, or if in RABco‘ opinion, the Services are likely to become the subject of a successful claim of such infringement or misappropriation, RABco, at RABco‘ option and expense, will use commercially reasonable efforts to (a) procure for Customer the right to continue using the Services as provided in the Agreement,  (b) replace or modify the Services so that the Services become non-infringing but remain substantively similar to the affected Services, and if neither (a) or (b) is commercially feasible, to (c) terminate the Agreement and the rights granted hereunder after provision of a refund to Customer of the Per Frequency Service Fees paid by Customer for the infringing elements of the Services covering the period of their unavailability.  
    2. RABco shall have no liability to indemnify or defend Customer to the extent the alleged infringement is based on:  (a) a modification of the Services by anyone other than RABco; (b) use of the Services other than in accordance with the Documentation for such Service or as authorized by the Agreement; (c) use of the Services in conjunction with any data, equipment, service  or software not provided by RABco, where the Services would not otherwise itself be infringing or the subject of the claim; or (d)  use of the Services by Customer other than in accordance with the terms of the Agreement.  Notwithstanding the foregoing, with regard to infringement claims based upon software created or provided by a licensor to RABco or Suppliers, RABco‘ maximum liability will be to assign to Customer RABco‘ or Supplier’s recovery rights with respect to such infringement claims, provided that RABco or RABco‘ Supplier shall use commercially reasonable efforts at Customer’s cost to assist Customer in seeking such recovery from such licensor.
    3. Customer shall defend RABco, its Suppliers and their respective directors, officers, employees, agents and independent contractors (collectively, the “RABco Indemnified Parties”) harmless, from and against any and all Claims alleging that: (a) employment-related claims arising out of Customer’s configuration of the Services; (b) Customer’s modification or combination of the Services with other services, software or equipment not furnished by RABco, provided that such Customer  modification or combination is the cause of such infringement and was not authorized by RABco; or, (c) a claim that the Customer Content infringes in any manner any intellectual property right of any third party, or any of the Customer Content contains any material or information that is obscene, defamatory, libelous, or slanderous violates any person’s right of publicity, privacy or personality, or has otherwise caused or resulted in any tort, injury, damage or harm to any other person.  Customer will have sole control of the defense of any such action and all negotiations for its settlement or compromise.  If legally permissible without causing liability for RABco, RABco will cooperate fully at Customer’s expense with Customer in the defense, settlement or compromise of any such action.  Customer will indemnify and hold harmless the RABco Indemnified Parties against any liabilities, obligations, costs or expenses (including without limitation reasonable attorneys’ fees) actually awarded to a third party as a result of such Claims by a court of applicable jurisdiction or as a result of Customer’s settlement of such a Claim.
    4. The Indemnified Party(ies) shall provide written notice to the indemnifying party promptly after receiving notice of such Claim.  If the defense of such Claim is materially prejudiced by a delay in providing such notice, the purported indemnifying party shall be relieved from providing such indemnity to the extent of the delay’s impact on the defense.  The indemnifying party shall have sole control of the defense of any indemnified Claim and all negotiations for its settlement or compromise, provided that such indemnifying party shall not enter into any settlement which imposes any obligations or restrictions on the applicable Indemnified Parties without the prior written consent of the other party.  The Indemnified Parties shall cooperate fully, at the indemnifying party’s request and expense, with the indemnifying party in the defense, settlement or compromise of any such action.  The indemnified party may retain its own counsel at its own expense, subject to the indemnifying party’s rights above.
    5. Customer agrees, on behalf of its agents, successors and assigns, if any, to indemnify, defend and hold RABco and its agents, contractors, service providers and affiliates (each referred to as an “Indemnified Party” under this paragraph), harmless against all liabilities, claims, demands, damages, losses, fines, judgments, disputes, costs, charges and expenses (including, without limitation, reasonable attorneys’ fees incurred in connection with such claims) made by Customer or Customer’s agents, any regulatory compliance department, or others resulting from, arising out of or related to (i) any acts or omissions by Customer, Customer’s Payroll Administrator and/or any other authorized users, or (ii) RABco’s or any other Indemnified Party’s use of or reliance on information and data furnished by you or resulting from activities that RABco or any other Indemnified Party undertakes at Customer’s request, or at the request of anyone RABco or any other Indemnified Party believes in good faith to be Customer’s authorized agent, in providing the Service or otherwise in connection with this Agreement. In no event will RABco’s or any other Indemnified Party’s liability for any act or omission relating to the Service exceed the total charge for services provided for the six (6) month period immediately preceding such act or omission by RABco.
    6. Customer’s indemnification and RABco’s limitation of liability shall not apply to any penalty or claim caused by RABco’s or its agents’ gross negligence.
14. LIMITATION OF LIABILITY
    1. IN NO EVENT WILL RABCO OR ANY OTHER INDEMNIFIED PARTY HAVE LIABILITY FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE OR INDIRECT LOSS OR DAMAGES REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER THEORY OR FORM OF ACTION OR WHETHER RABCO OR ANY OTHER INDEMNIFIED PARTY KNEW OR SHOULD HAVE KNOWN OF THE LIKELIHOOD OF SUCH DAMAGES IN ANY CIRCUMSTANCES.
    2. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, RABCO AND ITS SUPPLIERS WILL NOT BE LIABLE FOR ANY DAMAGES OR INJURIES CAUSED BY THE USE OF THE SERVICES OR BY ANY ERRORS, DELAYS, INTERRUPTIONS IN TRANSMISSION, OR FAILURES OF THE SERVICES. 
    3. EXCEPT FOR RABCO‘ INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 13 ABOVE, THE TOTAL AGGREGATE LIABILITY OF RABCO OR RABCO‘ SUPPLIERS TO CUSTOMER AND/OR ANY THIRD PARTY IN CONNECTION WITH THE AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES PROVEN BY CUSTOMER, SUCH DIRECT DAMAGES NOT TO EXCEED AN AMOUNT EQUAL TO THE TOTAL NET PAYMENTS RECEIVED BY RABCO FOR THE SERVICES IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE IN WHICH SUCH CLAIM ARISES.
    4. EXCEPT FOR RABCO‘ INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 13 ABOVE, IN NO EVENT SHALL RABCO OR RABCO‘ SUPPLIERS, THEIR RESPECTIVE AFFILIATES, SERVICE PROVIDERS, OR AGENTS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES OR FOR ANY LOST OR IMPUTED PROFITS OR REVENUES, LOST DATA OR COST OF PROCUREMENT OF SUBSTITUTE SERVICES RESULTING FROM DELAYS, NONDELIVERIES, MISDELIVERIES OR SERVICES INTERRUPTION, HOWEVER CAUSED, ARISING FROM OR RELATED TO THE SERVICES OR THE AGREEMENT, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED, WHETHER BREACH OF WARRANTY, INDEMNIFICATION, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, AND WHETHER LIABILITY IS ASSERTED IN CONTRACT, TORT OR OTHERWISE, AND REGARDLESS OF WHETHER RABCO OR SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LIABILITY, LOSS OR DAMAGE.
    5. EXCEPT WITH RESPECT TO LIABILITY ARISING FROM RABCO‘ GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, RABCO DISCLAIMS ANY AND ALL LIABILITY, INCLUDING WITHOUT LIMITATION LIABILITY RELATED TO A BREACH OF DATA SECURITY AND CONFIDENTIALITY OBLIGATIONS, RESULTING FROM ANY EXTERNALLY INTRODUCED HARMFUL PROGRAM (INCLUDING WITHOUT LIMITATION VIRUSES, TROJAN HORSES, AND WORMS), CUSTOMER’S CONTENT OR APPLICATIONS, THIRD PARTY UNAUTHORIZED ACCESS OF EQUIPMENT, SAAS APPLICATIONS OR SYSTEMS, OR MACHINE ERROR.
15. CONFIDENTIAL INFORMATION
    1. Each Party shall protect the Confidential Information of the other Party with at least the same degree of care and confidentiality, but not less than a reasonable standard of care, which such Party utilizes for its own information of similar character that it does not wish disclosed to the public.  Neither Party shall disclose to third parties the other Party’s Confidential Information, or use it for any purpose not explicitly authorized herein, without the prior written consent of the other Party.  The obligation of confidentiality shall survive for five (5) years after the return of such Confidential Information to the disclosing party or five (5) years after the expiration or termination of the Agreement, whichever is later, as applicable. 15.2  Notwithstanding the foregoing, a party may disclose Confidential Information to the extent required: (a) to any subsidiary or affiliate of such Party, or (b) to any consultants, contractors, and counsel who have a need to know in connection with the Agreement and have executed a non-disclosure agreement with obligations at least as stringent as this Section 15, or (c) by law, or by a court or governmental agency, or if necessary in any proceeding to establish rights or obligations under the Agreement; provided, the receiving party shall, unless legally prohibited, provide the disclosing party with reasonable prior written notice sufficient to permit the disclosing party an opportunity to contest such disclosure.  If a party commits, or threatens to commit, a breach of this Section 15, the other party shall have the right to seek injunctive relief from a court of competent jurisdiction.  
    2. This Agreement imposes no obligation upon either Party with respect to the other Party’s Confidential Information which the receiving Party can establish: (a) is or becomes generally known through no breach of the Agreement by the receiving party, or (b) is already known or is independently developed by the receiving party without use of or reference to the Confidential Information.
16. NON SOLICITATION
    1. Either Party to this Agreement will not, directly or indirectly, call upon, solicit or attempt to solicit, divert, or take away any business from, or perform any services whatsoever for, any of the Clients or Employees of the other Party with whom they had material contacts for the past 12 months arising out of or in service to this Agreement. Without in any way restricting the right of an employee freely to accept employment and change employment, if either Party actively solicits for employment in violation of this section and hires an employee of the other Party at any time during the Term of this Agreement or within twelve (12) months after the termination or expiration of this Agreement, then that Party shall pay to the other an amount being equivalent to six (6) months of the employee’s net annual base salary (excluding non-cash or discretionary benefits) as such employee received immediately prior to the solicitation in recognition only of the disruption that such inducement would cause to the efficient conduct of the other Party’s business and such sum shall be regarded as full payment for any damages or loss suffered.
17. GENERAL
    1. This Agreement shall be interpreted and construed in accordance with the laws of the State of California, without regard to the conflicts of laws principles thereof. Customer irrevocably submits (for itself and in respect of its property and business) to the jurisdiction of any state or federal court sitting in Los Angeles County, California, in any action or proceeding arising out of, or relating to, this Agreement and acknowledge and agree that all claims in respect of the action or proceeding may be heard and determined in any such court. You also agree not to bring any action or proceeding arising out of, or relating to, this Agreement in any other court. You waive any defense of inconvenient forum to the maintenance of any action or proceeding so brought.The parties waive the application of the United Nations Commission on International Trade Law and United Nations Convention on Contracts for the International Sale of Goods as to the interpretation or enforcement of the Agreement and waive and “opt out” of the Uniform Computer Information Transactions Act (UCITA), or such other similar law.
    2. The invalidity or illegality of any provision of the Agreement shall not affect the validity of any other provision. The parties intend for the remaining unaffected provisions to remain in full force and effect.
    3. Customer shall not assign the Agreement or the rights to use the Services without the prior written consent of RABco and any purported assignment, without such consent, shall be void.
    4. Neither Party shall be responsible for any failure to perform or delay in performing any of its obligations under this Agreement (other than a failure to comply with payment obligations) where and to the extent that such failure or delay results from an unforeseeable event beyond a party’s reasonable control, including but not limited to, acts of war; acts of nature; earthquake; flood; embargo; riot; sabotage; labor shortage or dispute; changes in government codes, ordinances, laws, rules, regulations or restrictions; failure of the Internet; terrorist acts; failure of data, products or services controlled by any third party, including the providers of communications or network services; utility power failure; material shortages or unavailability or other delay in delivery not resulting from the responsible party’s failure to timely place orders therefor, or lack of or delay in transportation (each a “Force Majeure Event”). 
    5. If a legitimate dispute arises as to whether a Material Breach has occurred or whether a Party’s right to terminate this Agreement exists the parties agree to arbitrate that dispute on an expedited and abbreviated discovery basis within 30 days of the dispute. 
    6. Notwithstanding any other provision in this Agreement, if either Customer or RABco have any unresolvable dispute, controversy or claim, whether founded in contract, tort, statutory or common law, concerning, arising out of or relating to this Agreement or the Service, including any claim regarding the applicability, interpretation, scope or validity of this arbitration clause and/or this Agreement (a “Claim”) and upon the demand of either party, it will be settled by individual (not class or class-wide) binding arbitration administered by the American Arbitration Association (AAA) in accordance with the then current Commercial Financial Disputes Arbitration Rules, including any expedited discovery procedures. A demand that a Claim be submitted to arbitration may be made before the initiation of any legal proceeding or within ninety (90) days following the service of a complaint, third-party complaint, cross-claim or counterclaim and if a party in a pending legal proceeding demands a Claim to be submitted to arbitration, the party initiating the action will immediately dismiss the legal proceeding and file the claim in arbitration. Arbitration hearings will be held in a mutually agreeable location or if no such agreement can be reached, the city where the dispute occurred. A single arbitrator will be appointed by the AAA and shall be a practicing attorney or retired judge having experience with and knowledge of payroll and online commerce law. The arbitrator will follow the law and will give effect to any applicable statutes of limitation. The prevailing party shall be entitled to an award of the costs and expenses of the arbitration, including attorneys’ fees and expert witness fees. A judgment on the award may be entered by any court having jurisdiction. The parties agree and acknowledge that this agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act (Title 9 of the United States Code) shall govern the interpretation, enforcement, and proceedings pursuant to the arbitration clause in this Agreement.
    7. Except as otherwise specified, all Notices under the Agreement shall be in writing and sent via email to support@rabcopayroll.com or by postage pre-paid to the address on the RABco Order Form, or if to Customer by email to the email and/or address submitted by Customer on the Contact Authorization Form.
    8. No action regardless of form, may be brought by either party more than two (2) years after the cause of action has arisen.
    9. The section headings herein are provided for convenience only and have no substantive effect on the construction of the Agreement.
    10. The parties agree that if the Agreement is accepted by the parties and that acceptance is delivered via fax or electronically delivered via email or the internet it shall constitute a valid and enforceable agreement. Use of the Service includes the ability to enter into agreements and/or to make transactions electronically. CUSTOMER ACKNOWLEDGES THAT WHEN IT INDICATES ACCEPTANCE OF AN AGREEMENT AND/OR TRANSACTION ELECTRONICALLY, THAT ACCEPTANCE WILL CONSTITUTE ITS LEGAL AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR SUCH AGREEMENTS AND TRANSACTIONS. THIS ACKNOWLEDGEMENT THAT CUSTOMER INTENDS TO BE BOUND BY SUCH ELECTRONIC ACCEPTANCE APPLIES TO ALL AGREEMENTS AND TRANSACTIONS CUSTOMER ENTERS INTO THROUGH THE SERVICE, SUCH AS ORDERS, CONTRACTS, STATEMENTS OF WORK, AND NOTICES OF CANCELLATION.
    11. This Agreement and any information expressly incorporated by reference herein, together with the applicable Order Form, constitute the entire agreement between the parties for the Services described herein and supersede all prior or contemporaneous representations, negotiations, or other communications between the parties relating to the subject matter of this Agreement. This Agreement may be amended only in writing signed by authorized representatives of both parties. Customer understands and acknowledges that while RABco may disclose to customers certain confidential information regarding general Service or product development direction, potential future Services, products or product enhancements under consideration, Customer is not entitled to any Services, products or product enhancements other than those contained on the Order Form. Customer has not relied on the availability of any future version of the Services (including SaaS Applications or equipment) identified on an Order Form, nor any other future product in executing the Agreement.