Last Updated: September 17th, 2019
TERMS OF SERVICE
YOUR USE OF THE SERVICE OFFERED AT WWW.PAYCHECKWIZARD.COM (THE “SERVICE”), IS SUBJECT TO THESE TERMS OF SERVICE (THE “TERMS OF SERVICE” OR THIS “AGREEMENT”). IN ORDER TO USE THE SERVICE, YOU MUST AGREE TO BE BOUND BY THESE TERMS OF SERVICE (“AGREEMENT”) WITH PAYCHECK WIZARD, INC. (“PAYCHECK WIZARD”). IF YOU DO NOT AGREE TO ALL TERMS OF THIS AGREEMENT, YOU MAY NOT USE THE SERVICE.
By signing up for the Service on behalf of a Client, you confirm that (a) you are duly authorized to represent the entity, (b) you accept the terms of this Agreement on behalf of such entity, and (c) any references to “you” in this Agreement refer to such entity and all of its employees, consultants and agents. You are responsible for all activity on the Service that occurs under your account.
1.1 The Paycheck Wizard Service is powered by ExecuPay, Inc. (“ExecuPay”) to assist you with payroll processing. This Service is governed by Execupay’s additional terms, in addition to all terms and conditions of this Agreement. In order to fully utilize the Services, you will be required to accept ExecuPay’s Terms of Service, which may be found here: http://www.execupay.com/legal-privacy-policy/. In addition, you may be required to agree to, complete, and/or sign other agreements provided by ExecuPay, such as ExecuPay’s Payroll Services Agreement. For additional information of the services provided by ExecuPay, you may visit their website here: http://www.execupay.com/. A Payroll Services Agreement can be obtained from ExecuPay.
1.2 The Paycheck Wizard Service incorporates features and shares information with Time Clock Wizard, Inc. (“Time Clock Wizard”). To utilize certain features of the Services, you will be required to interact with Time Clock Wizard and/or create an account on the Time Clock Wizard website, which may be found here: https://www.timeclockwizard.com/. In addition, in order to fully utilize the Services, you will be required to accept Time Clock Wizard’s Terms of Service, which may be found here: https://www.timeclockwizard.com/terms-of-services.
1.3 Collectively, the terms and conditions from ExecuPay and Time Clock Wizard will be referred to as the “Additional Terms,” and those Additional Terms become part of this Agreement. In the event an Additional Term directly conflicts with any term in this Agreement, the Additional Term will apply to your use of the additional service instead of the term contained in this Agreement.
Term and Termination
2.1 This Agreement will remain in effect as long as you have an active subscription for the Service (the “Term”). If you elect to use the Service for a free trial period, and do not purchase a subscription before the end of such period, this Agreement will expire at the end of the free trial period.
2.2 Subscriptions purchased by you commence on the start date specified when you complete the initial payment process and continue for the subscription term selected at the time of payment. If you add an additional subscription for a new Paycheck Wizard service or module at a later date, the new service will commence on the start date specified at the time you added the new service and continue for the subscription term selected at that time. Subscriptions automatically renew, as described in Section 5.1.
2.3 You are solely responsible for the proper cancellation of your subscription. You may cancel your subscription at any time by emailing [email protected].
2.4 Paycheck Wizard may suspend your access to the Service and terminate this Agreement and your use of the Service at any time in the event you materially breach the Additional Terms, and/or this Agreement (including failure to pay, which may occur in the event when your credit card cannot be charged) and do not cure such breach within 30 days of Paycheck Wizard providing you with written notice (including notice by email), or earlier if a specific subscription provides otherwise. Notwithstanding the foregoing, Paycheck Wizard may immediately suspend or terminate your access to the Service without liability if you are in violation of Sections 4.1 or 13 of this Agreement, as determined by Paycheck Wizard in its sole discretion. Paycheck Wizard may also downgrade, suspend or terminate your access to the Service without liability, after providing you with 30 days’ advance written notice, if you fail to affirmatively agree to material modifications of this Agreement pursuant to Section 3.1 below. Notice via email from Paycheck Wizard will be sent to you at the email address you have provided to us. Paycheck Wizard reserves the right to manage its client profile, the risks it will assume, the industries it will serve, and the locations where it will do business, including choosing to not provide Services to certain groups parties, industries, or companies in certain countries, in its sole discretion.
Modification of Service or this Agreement
3.1 The Service may be made available in free or paid versions at different levels. Not all features and functionality of the Service may be available in each version or level. Paycheck Wizard and ExecuPay, reserve the right, to modify, add, or remove portions and/or functionality of the Service on a temporary or permanent basis, without liability to you or any third party.
3.2 Paycheck Wizard may modify or update this Agreement at any time. In the event Paycheck Wizard determines it is necessary to make a material modification to this Agreement, you will be notified of such change. Note, however, that your use of the Service after modifications to the Agreement become effective constitutes your binding acceptance of such changes.
3.3 If you are dissatisfied with the terms of this Agreement or any modifications to this Agreement or the Service, you agree that your sole and exclusive remedy is to terminate your subscription and discontinue any use of the Service.
Usage Rights; Restrictions; Support
4.1 During the Term, Paycheck Wizard grants you a limited, revocable, non-transferable, non-sublicensable, non-exclusive right to access and use the hosted software products and related documentation included in the Service and all modifications and/or enhancements to any of the foregoing (collectively, the “Software”), in accordance with Paycheck Wizard’s license from ExecuPay, via a web browser or other device owned or controlled by you for your internal business use. Nothing in this Agreement obligates Paycheck Wizard to deliver or make available any copies of computer programs or code from the Software to you, whether in object code or source code form. You agree to use the Service only in compliance with all applicable local, state, national, and international laws, rules and regulations (“Applicable Law(s)”) and the Additional Terms. You shall not, and shall not agree to, and shall not authorize, encourage or permit any third party to:
- 1) use the Service to upload, transmit or otherwise distribute any content that is unlawful, defamatory, harassing, fraudulent, obscene, threatening, abusive, hateful, contains viruses, or is otherwise objectionable;
- 2) use the Service for any fraudulent or inappropriate purpose, or in a manner for which it is not intended to be used;
- 3) attempt to decipher, decompile, delete, alter or reverse engineer any of the Software;
- 4) duplicate, make derivative works of, reproduce or exploit any part of the Service without the express written permission of Paycheck Wizard and ExecuPay;
- 5) use any robot, spider, other automated device, or manual process to monitor or copy any content from the Service other than copying or exporting as contemplated in the Software; or
- 6) rent, lease, distribute, or resell the Software, or access or use the Software or Services for developing a competitive solution (or contract with a third party to do so), or remove or alter any of the logos, trademark, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in the Software or displayed in connection with the Service.
4.2 Paycheck Wizard shall: (i) provide you with basic support in connection with your use of the Service at no additional charge. However, Paycheck Wizard has no responsibility and does warrant or represent that the Service available 24 hours a day, 7 days a week, which shall specifically include circumstances caused by circumstances beyond Paycheck Wizard’s reasonable control, including acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving our employees), Internet service provider failures or delays, or denial of service attacks.
4.3 You are solely responsible for your Data, and all uses of your Data that occur through your account.
5.1 Your subscription to the Service renews automatically for the same term selected upon initial payment (e.g., month-to-month, annual, etc.). Paycheck Wizard does not directly collect or process any payment information or transactions. Instead, all such payments are processed by ExecuPay. ExecuPay will charge you directly via your provided payment method. You may change your subscription term at any time by contacting Paycheck Wizard using one of the methods set forth in the Contact Information section below. If you are paying by credit card, ExecuPay will charge your credit card once a month for monthly subscriptions. ExecuPay will email you a receipt when your card has been charged. If your card cannot be charged, ExecuPay will notify you and you will need to update your payment information. There will be no refunds or credits for partial months of service.
5.2 All fees are exclusive of all taxes or duties imposed by governing authorities. Other than sales taxes which ExecuPay may be required to collect from you and remit to appropriate taxing authorities, you alone are responsible for payment of all such taxes or duties.
5.3 Paycheck Wizard may at any time, upon notice of at least 90 days, or a longer period if required by Applicable Law, change the price of your subscription or any part thereof, or institute new charges or fees. If you do not agree to any such price changes, then you must cancel your subscription and stop using the Service prior to the commencement of the renewal subscription period for which the price change applies.
Intellectual Property Rights
6.1 As between the parties, Paycheck Wizard and/or its licensors, including ExecuPay, own and shall retain all right, title and interest in and to (a) the Software and the Service, including all intellectual property rights, and (b) transactional and performance data related to your use of the Service. Paycheck Wizard may collect, use and disclose all such transactional and performance data for its business purposes (including software use optimization and product marketing) provided that such use does not reveal your identity, any of your confidential information or any personally identifiable information that belongs to you or your employees.
6.2 You retain all right, title and ownership interest in and to the information you place into the Software (the “Data”). Paycheck Wizard has no right, title or interest in any personally identifiable information contained in or related to your Data.
6.3 You have no obligation to give Paycheck Wizard any suggestions, enhancement requests, recommendations, comments or other feedback (“Feedback”) relating to the Service. To the extent you provide any Feedback to Paycheck Wizard, Paycheck Wizard may use and include any such Feedback to improve the Service or for any other purpose. Accordingly, if you provide Feedback, you agree that Paycheck Wizard shall own all such Feedback and Paycheck Wizard and its affiliates, licensees, clients, partners, third-party providers and other authorized entities may freely use, reproduce, license, distribute, and otherwise commercialize the Feedback in the Service or other related technologies, and you hereby assign all rights in such Feedback to Paycheck Wizard.
7.1 Unless otherwise agreed to by you and Paycheck Wizard, during the Term, Paycheck Wizard may disclose your name as a customer of Paycheck Wizard and/or subscriber to the Service, and you hereby grant Paycheck Wizard the right to display your name, company, and logo in Paycheck Wizard’s marketing materials and on Paycheck Wizard’s public website, in each case in accordance with any branding guidelines you may provide to Paycheck Wizard.
8.1 Certain features of the Site may enable you and other users to submit, upload, post, share, or display (hereinafter “post”) comments or content, as well as to interact with others through user comment areas, message boards, direct messages, Paycheck Wizard’s blog, and similar user-to-user areas, as applicable (such comments and content shall be collectively referred to as “User Content”). User Content includes any comments or reviews you provide to Paycheck Wizard about the Service, but excludes all Data.
8.2 You hereby grant to Paycheck Wizard an irrevocable, perpetual, non-exclusive, transferable, sublicensable, assignable, royalty-free, worldwide right and license to use, reproduce, display, perform, distribute, and prepare derivative works of any User Content you post on or through the Service for any purpose and in all forms and all media, whether now known or that become known in the future, and you waive any and all claims that you may have now or may hereafter have in any jurisdiction to any moral rights and all rights of “droit moral” in your User Content. If you post User Content, you represent and warrant to Paycheck Wizard that you own or control all rights in and to such User Content and have the right to grant the rights above to Paycheck Wizard.
Warranties and Limitation of Liability
9.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PAYCHECK WIZARD HEREBY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICE, SOFTWARE, DOCUMENTATION, DELIVERABLES AND OTHER MATERIALS AND/OR SERVICES. PAYCHECK WIZARD DOES NOT WARRANT THAT OPERATION OF THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED.
9.2 IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF THIS AGREEMENT, AND THE AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER WITH RESPECT TO THIS AGREEMENT IS LIMITED, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, TO THE FEES COLLECTED BY PAYCHECK WIZARD FROM YOU PURSUANT TO THIS AGREEMENT IN THE SIX (6) MONTHS PRECEDING THE EVENT FROM WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATIONS APPLY EVEN IF SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.
10.1 External Breach: In the event of a security breach, as defined by Applicable Law, by anyone other than your employee, contractor or agent, upon discovery of such breach, Paycheck Wizard will initiate remedial actions that are required by and in compliance with Applicable Law. You will be responsible for fulfilling your obligations under Applicable Law.
10.2 Internal Breach: In the event of a security breach, as defined by Applicable Law, by your employee, contractor or agent, you shall have sole responsibility for initiating remedial actions and you shall notify Paycheck Wizard immediately of the breach and steps you will take to remedy the breach. In our sole discretion, we may take any action, including suspension of your access to the Service, to prevent harm to you, us, the Service, or other third parties. You waive any right to make a claim against us for losses you incur that may result from our actions.
11.1 You agree to indemnify, defend and hold harmless Paycheck Wizard, and its subsidiaries, affiliates, officers, directors, agents, and employees from and against any costs, damages, expenses (including reasonable attorneys’ fees), judgments, losses and other liabilities (including amounts paid in settlement) (“Liabilities”) incurred as a result of any third-party action, claim, demand, proceeding or suit (“Claim”) to the extent arising from or in connection with (a) your use of the Software and/or Service in violation of this Agreement and/or the Additional Terms, or (b) any employment decision or action you take due to information available through or your use of the Service.
11.2 A party seeking indemnification hereunder shall (a) promptly notify the other party in writing of the Claim, (b) give the indemnifying party sole control of the defense of such Claim and all negotiations for the compromise or settlement thereof (provided that if any settlement requires any action or admission by the indemnified party, then the settlement will require the indemnified party’s prior consent), and (c) provide the indemnifying party with all reasonable cooperation, information and assistance in connection with such Claim; provided, however, that failure by the indemnified party to provide prompt notice of a Claim, grant such sole control, and/or provide such cooperation, information and assistance, shall not relieve the indemnifying party of its obligations under this Article 11, except to the extent that the indemnifying party is materially prejudiced by such failure. The indemnified party may be represented by its own counsel, at its own expense.
12.1 This Agreement shall be governed by and construed in accordance with the substantive laws of the State of Florida, without reference to conflict of laws principles. Any legal action or proceeding with respect to this Agreement must be brought in the state or federal courts located in Florida. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
Compliance with Laws; Disclaimers
13.1 Each Party shall comply with all Applicable Laws in connection with its own activities under this Agreement. It is your sole responsibility to monitor your employees’ use and your use of the Service to ensure that such use complies with and is in accordance with Applicable Law. In no event shall Paycheck Wizard be responsible or liable for your failure to comply with Applicable Law in connection with your use of the Service.
13.2 Paycheck Wizard does not provide its customers with legal advice regarding compliance, data privacy or other relevant Applicable Laws in the jurisdictions in which you use the Service, and any statements made by Paycheck Wizard to you shall not constitute legal advice.
13.3 You acknowledge that Paycheck Wizard exercises no control over your specific human resource practices implemented using the Service or your decisions as to employment, promotion, advancement, termination, notification, or compensation of any employee or authorized user of the Service. You further agree and acknowledge that Paycheck Wizard does not have a direct relationship with your employees and that you are responsible for all contact, questions, Data updates and collection, with your employees. In addition, you are responsible for the privacy (including adopting and posting your own privacy policies governing your treatment of your employees’ Data), collection, use, retention and processing of your employees’ Data, and providing any and all notices and information to your employees regarding the foregoing, in compliance with all Applicable Laws. Paycheck Wizard hereby disclaims all liability arising from your decisions and from harmful data or code uploaded to the Service by you and/or your employees, contractors or agents.
13.4 You represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
14.1 Entire Agreement. This Agreement encompasses the entire agreement between you and Paycheck Wizard with respect to the subject matter hereof and supersedes all prior representations, agreements and understandings, written or oral. No purchase order or other form submitted by you will modify, supersede, add to or in any way vary the terms of this Agreement.
14.2 No Waiver. The failure of Paycheck Wizard to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
14.3 Severability. If any part of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, the remainder of the Agreement shall be interpreted so as to reasonably effectuate the intention of the parties and shall not affect the validity and enforceability of any remaining provisions.
14.4 Survival. The provisions of this Agreement that should, by their nature survive termination and/or expiration, shall and do survive such termination and/or expiration.
14.5 Assignment. You may not assign or otherwise transfer any of your rights or obligations under this Agreement without Paycheck Wizard’s prior written consent, which consent shall not be unreasonably withheld. This Agreement shall be binding upon and will inure to the benefit of the parties and their respective successors and permitted assigns. Any assignment in violation of the foregoing will be null and void.
14.6 No Legal Advice; Reliance. No part of this Agreement is intended or shall be construed as legal advice. Paycheck Wizard shall not be liable for an errors or omissions in the content of this Agreement or for any actions taken in reliance thereon.
15.1 If you have any questions about the Service or this Agreement, you may call us at 1-866-208-7618, email us at [email protected], or write to us at: 228 Park Ave S #20163 New York, NY 10003