1.       AGREEMENT WITH COUNTER POINT

1. Your agreement with Counter Point consists of:  (i) the general services terms and conditions set out herein and (ii) the applicable services schedule and pricing chosen by you (collectively either “Terms” or “Agreement”).  As long as you are given access to it and it is not canceled by you, you are obliged to pay for your chosen service even if the service is ultimately not utilized by you.  Other than agreements you may need to enter with third parties to obtain certain specific Services, this Agreement alone governs the provision of Services to you by Counter Point and all of Counter Point’s services and associated documentation (whether in printed or electronic form).  Services are provided to you only under the terms of this Agreement.   Client acknowledges that it was required to confirm which Services are requested of Counter Point and will execute all necessary forms before Counter Point can begin to render such services.

• “Counter Point” means Counter Point HCM, LLC d/b/a Counter Point, a corporation located at 65 Harristown Road, Suite 208, Glen Rock, NJ 07452.

• “Counter Point Website” means www.CounterPointHCM.com (operated by Counter Point) and any other websites authorized by Counter Point which link to the Agreement.

• “Client” means the business entity agreeing to be bound by the Agreement.

• “Client Name” means your business name as stated in your federal W-9 form.

• “Services” means collectively the payroll and human capital services anticipated under this Agreement, chosen by you, and provided by Counter Point. Any requested changes to your chosen Services will be implemented upon your receipt of written confirmation of such changes by Counter Point.

• “Software” means such software provided to you that is necessary for you to implement or otherwise use the Services.

• “You” or “your” means Client.

2.       ACCEPTANCE OF THE TERMS

1. The Agreement supersedes and modifies any prior agreement you may have had with Counter Point. To the extent there is any inconsistency between any prior agreement you may have had with Counter Point and the Agreement, the Agreement shall prevail.

• To begin and continue using the Services, you must accept this Agreement. The Terms are accepted by you (a) when you sign on initially as a Client or (b) when you click online to accept or agree to the Terms.  Your continued acceptance exists by virtue of your using the Services. We advise you to print a copy of the Agreement for your records. You can also download a copy on www.CounterPointHCM.com/terms. This Agreement remains effective from the date of acceptance until terminated by you or Counter Point in accordance with Section 12.

• You cannot accept the Agreement if: (a) you are not a US-based business or (b) you have any employees working or residing outside The United States of America and its possessions, territories and military bases.

• Client acknowledges and understands that Counter Point will not commence the Services until Counter Point receives completed Client forms and other documents necessary to begin each of the services and notifies Client of the date Counter Point will commence the Services. Client understands that this Agreement may be considered an application for credit and hereby authorizes Counter Point to investigate the credit of the Client and/or its principals. Client warrants that it possesses full power and authority to enter into this Agreement, that it has chosen the Services initiated, and has read and agrees to the terms and conditions set forth herein.

2.       ACCEPTANCE OF THE TERMS

1. The Agreement supersedes and modifies any prior agreement you may have had with Counter Point. To the extent there is any inconsistency between any prior agreement you may have had with Counter Point and the Agreement, the Agreement shall prevail.

• To begin and continue using the Services, you must accept this Agreement. The Terms are accepted by you (a) when you sign on initially as a Client or (b) when you click online to accept or agree to the Terms.  Your continued acceptance exists by virtue of your using the Services. We advise you to print a copy of the Agreement for your records. You can also download a copy on www.CounterPointHCM.com/terms. This Agreement remains effective from the date of acceptance until terminated by you or Counter Point in accordance with Section 12.

• You cannot accept the Agreement if: (a) you are not a US-based business or (b) you have any employees working or residing outside The United States of America and its possessions, territories and military bases.

• Client acknowledges and understands that Counter Point will not commence the Services until Counter Point receives completed Client forms and other documents necessary to begin each of the services and notifies Client of the date Counter Point will commence the Services. Client understands that this Agreement may be considered an application for credit and hereby authorizes Counter Point to investigate the credit of the Client and/or its principals. Client warrants that it possesses full power and authority to enter into this Agreement, that it has chosen the Services initiated, and has read and agrees to the terms and conditions set forth herein.

3.       CHANGES TO THE TERMS

a. Counter Point may make changes to the Agreement from time to time. Counter Point will publish the changes at www.CounterPointHCM.com/terms. The changes will be effective after their publication and your continued use of the Services after such publication. Please review the Terms on a regular basis. You understand and agree that your express acceptance of the Terms or your use of the Services, including but not limited to by your use of your Counter Point login account after the date provided to you, shall constitute your agreement to all subsequently updated Terms. Should you not agree to amended Terms, you may terminate your relationship with Counter Point in accordance with this Agreement.

4.       REPRESENTATIONS AND WARRANTIES

1. Counter Point is not a law firm, accounting firm or investment advisory firm and will not render any legal, tax, accounting, or investment advice in connection with the performance of the Services. Client acknowledges Counter Point will never render any legal, tax, accounting, or investment advice in connection with the performance of the Services. Counter Point is also not a fiduciary of (i) Client or any of its employees and (ii) a fiduciary of any Client benefit plan offered for the benefit of Client’s employees, or the employer or joint employer of Client’s employees. Counter Point will not be responsible for Client’s compliance with federal, state, or local statutes, regulations, or ordinances, including, but not limited to, the Fair Labor Standards Act or any wage and hour laws.

• Client agrees, represents and warrants that during the term of the Agreement it will comply with (i) all tax laws and all federal, state, and local laws or ordinances involving employee rights that may relate to the Services; (ii) all federal, state and local privacy laws; and (iii) all federal and state intellectual property laws.

• Client will designate one or more authorized contact(s) who will provide Counter Point with information and directives necessary for Counter Point to perform the Services (collectively “Client Information”). Client is responsible for the accuracy of any Client Information provided by such authorized contact on behalf of the Client. Client agrees, represents and warrants that it is solely responsible for designating all authorized contacts, establishing the level or type of access being granted to each contact, and keeping all contacts and access levels current at all times. Client is solely responsible for informing Counter Point of any changes to contacts status.  All instructions provided by Client’s authorized contact to Counter Point via an Online Account or otherwise are considered binding on Client even if such instructions are subsequently disavowed or rejected by Client’s management. 

• Client warrants and represents that all Client Information is complete, actually in use, up-to-date, and accurate, including but not limited to employee information such as Social Security and Individual Taxpayer Identification Numbers provided to Counter Point.  If Client authorizes the automatic production and processing of Client’s payroll, changes to such automatic payroll instructions must be made at least forty-eight (48) hours before the next scheduled process day.   

• Client warrants and represents that it shall not provide inaccurate information to Counter Point and will be responsible for promptly detecting and correcting any errors in Client Information.

• The authorized client contact agreeing to the terms of this Agreement agrees, represents and warrants he or she has the authority to execute this Agreement on behalf of Client and can bind Client to this Agreement. Client agrees, represents and warrants that it possesses full power and authority to enter into this Agreement, and has read and agrees to the terms and conditions set forth in the Agreement.

• Some Services require that Counter Point act as a data conduit.  Counter Point does not take any responsibility for the data it is transferring on your behalf.  For example, if Client purchases Services that require Counter Point to transfer data to a Workers’ Compensation carrier or manager of a 401(k) plan or other retirement plan, Counter Point will not be liable for any issues arising from the transmission of such data, including untimely submission, submission of incorrect data or incorrect format.  It is Client’s responsibility to notify Counter Point of any changes to the transmission format, termination of the relationship and establish a process to audit successful periodic transmissions given Counter Point is acting solely as a data conduit. It is the Client’s responsibility to obtain transmission confirmation from the receiver. Counter Point will not be liable for any issues arising from the transmission of data, including untimely submission or the submission of incorrect data or incorrect format, unless Client can demonstrate Counter Point disregarded Client’s instructions and such conduct was grossly negligent.

5.       USE AND SAFEGUARDING OF ONLINE ACCOUNT ACCESS

1. Client can access Services online through a personal computer, mobile device or other electronic device.  Client is also provided with the option of a self-service, internet-based web site (“Employee Access online”) that gives Client’s employees access to their payroll information and demographic information. In addition, you may be provided with login to a third-party portal providing you with Services.  All such accounts are considered an “Online Account”. Client authorizes Counter Point to access an Online Account to perform administrative functions, as necessary, to provide Services.  By providing Employee Access online, Client agrees and acknowledges that Client is solely responsible for the accuracy and incorporation of any changes made to the Client’s Information by or on behalf of Client’s employees, including advising Counter Point of any changes in taxability that may result. In order to use an Online Account, you will need an Internet connection. You are responsible for providing all equipment required to access the Internet. Connecting to the Internet via a corporate or other private network which masks your device may disable authentication tools utilized

by Counter Point.  You are also responsible for ensuring that any employee accessing Employee Access online complies with all use and safeguarding obligations set forth in the Agreement, including in this section.

• When accessing an Online Account, we recommend that you choose a password that is hard to guess and consists of letters, numbers and symbols. You are solely responsible and liable for all activities conducted through your Online Account (“Online Account Access”). To prevent unauthorized use, you shall keep your username and password confidential and shall not share it with any third party or use it to access third party websites or services. If you suspect that someone else knows your password, then you shall immediately change it in order to protect the security of your Online Account. It is your responsibility to ensure that you do not respond to any unsolicited requests for passwords or other data. Counter Point takes no responsibility for your failure to comply with your obligations regarding Online Account Access, including any compromise of your credentials for accessing the Online Account.

• Client is solely responsible for (i) designating who is authorized to have access to the Online Account; (ii) safeguarding all passwords, usernames, logins or other security features used for Online Account Access; (iii) use of Online Account under any usernames, logins, or passwords; (iv) ensuring that the use of the Online Account complies fully with the provisions of this Agreement; and (v) any unauthorized access, or use, of the Online Account caused by Authorized Users’ actions or inactions, including, without limitation, its failure to safeguard Online Account or Online Account Access. Client agrees to immediately notify Counter Point of any actual or suspected unauthorized use of Online Account, and acknowledges that Client is solely responsible for damages resulting from Client’s failure to timely notify Counter Point. Counter Point reserves the right to limit, suspend, or terminate Client’s and/or Authorized User(s) access to Online Account should Counter Point have reason to believe that the security or confidentiality of Online Account or Online Account Access has been compromised.

• At Client’s written request, Counter Point may create additional login credentials for your accountant or another third party to view certain information found in the Online Account.  Client understands that it is Client’s responsibility to notify Counter Point in writing when it would like this access terminated. Counter Point is not liable for the conduct of anyone granted access to Client Information. Client agrees to indemnify and hold Counter Point harmless for any harm or loss caused by any person provided such additional access pursuant to Client’s request.

• Client acknowledges that Authorized Users select the security level for Online Account Access and Client is solely responsible for these selections. Client further acknowledges that it has reviewed all of the security levels and has determined the level or levels for its Authorized Users that is commercially responsible for providing security against unauthorized access and meets Client’s requirements given the size, type, frequency, of the Services it will receive from Counter Point. Client is solely responsible for implementation of an information security program appropriate to safeguard the Online Account and Online Account Access and which is consistent with all applicable federal, state, and/or local statutes or regulations; safeguarding Online Account and Online Account Access for any third-party services integrated into the Services; maintenance and routine review of computing and electronic system usage records (i.e. log files); and the security of its own data, data storage, computing device(s), other electronic systems, and network connectivity. CLIENT ACKNOWLEDGES AND AGREES THAT COUNTER POINT AND ITS SOFTWARE VENDORS ARE NOT LIABLE TO CLIENT, CLIENT’S EMPLOYEES OR ANY OTHER THIRD-PARTY FOR ANY INJURY, LOSSES, OR DAMAGES RESULTING FROM UNAUTHORIZED ACCESS OR USE OF THE ONLINE ACCOUNT, INCLUDING BUT NOT LIMITED TO SUCH UNAUTHORIZED ACCESS CAUSED BY ANYONE’S FAILURE TO SAFEGUARD CREDENTIALS OR THEIR FAILURE TO SECURE A COMPUTER NETWORK AND/OR DEVICES.

• You may link to your Online Account from another website owned by you, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it. You must not establish a link in such a way as to suggest any form of association, approval or endorsement by Counter Point where none exists. You may not frame the Site on any other site. Counter Point may revoke the permission to link at any time at its sole discretion and will notify you in this respect.

6.       CLIENT CONFIDENTIAL INFORMATION

a. Counter Point is committed to respecting the confidentiality of Client Confidential Information. For purposes of the Agreement, “Client Confidential Information” will mean all information disclosed or otherwise made available by Client to Counter Point that is marked confidential and the name, social security number, date of birth, address, bank, and/or wage information of Client and Client’s employees provided to Counter Point by Client. Counter Point will use reasonable care to prevent the disclosure of such Client Confidential Information to any unauthorized person or entity. Counter Point may disclose Client Confidential information to its employees, agents, and contractors to (i) to perform Services, (ii) integrate third-party services into the Services; (iii) perform analysis to determine Client’s qualification to receive future services; (iv) collect Amounts Due and may disclose Client’s payment experiences with Counter Point to the credit reporting agencies and supply Vendor references on Client’s behalf.  Counter Point may also disclose Client Confidential Information to its attorneys, accountants, and auditors and pursuant to federal, state, or local law, regulation, court order legal process, or governmental investigation. In the event of any compromise or security breach resulting in the disclosure or possible disclosure of Client Confidential Information, Counter Point will notify Client as legally required of such compromise or breach. The obligations set forth in this section will not apply to any Client Confidential Information that (i) Client has agreed is free of any nondisclosure obligations; (ii) at the time of disclosure was free of any nondisclosure obligations; (iii) is independently developed by Counter Point or that Counter Point lawfully received, free of any nondisclosure obligations, from a third-party having the right to furnish such Client Confidential information; (iv) is or becomes available to the public without any breach of this Agreement or unauthorized disclosure; or (v) is already in the possession of the requesting party.

7.       CLIENT INFORMATION AND REMITTING OF FUNDS

1. Client will execute and/or provide all documentation that Counter Point requires to perform its responsibilities under the Agreement including, where necessary, taking all corporate action. Client acknowledges that pursuant to applicable federal and/or state statutes or regulations Counter Point may be required to obtain documents necessary to verify the identity of Client.  

• Client will provide Counter Point with all necessary Client Information pertaining to Client’s employees at least two (2) banking days prior to a proposed payroll check date. Client acknowledges that Client is responsible for any delayed remittance of wages, taxes, and garnishments, and additional processing fees incurred as a result of its failure to provide Client Information at least two (2) banking days prior to the proposed payroll check date. 

• Counter Point shall not be required to obtain further authorization from Client to rely and act on Client Information.  If Client purchases vendor check services from Counter Point, the Client will be solely responsible for ensuring related payee information, and payee amount is accurate. If Client purchases garnishment services from Counter Point, Client will provide Counter Point with a garnishment Order for each employee for whom wages are to be garnished. Client remains solely responsible for the correct calculation of the amount to garnish from its employees’ wages. Client is also solely responsible for notifying garnishing agency of any changes in garnished employee’s status with company, including reductions in pay preventing the satisfaction of a garnishment.

• Client will review all reports, documents, and data provided, made available, or accessible by Client on Client’s account, and Client will inform Counter Point of any inaccuracies within two (2) business days of receipt or availability. Counter Point will not be responsible for errors that result from Counter Point’s reliance on Client Information.

8.       PAYMENT OF FEES

1. Client will pay all fees, including, but not limited to, fees for all Counter Point Services, each pay period through Electronic Funds Transfers (“EFT”) when due (collectively “Fees”). Minimum monthly fees are due in the event the Client fails to process a payroll or whose payroll fails to meet the minimum monthly charge during the month. Fees include minimum monthly charge, insufficient funds, late fees and banking fees. Counter Point’s Fees are subject to change upon thirty (30) days notification to Client. Counter Point may, in its sole discretion, require a security deposit from Client, and Client waives any right to interest that may accrue on any amounts, including, but not limited to, client liability, fees, and security deposits received by Counter Point.

• Client agrees to remit funds to Counter Point representing the amount due to pay Client’s employees, remit taxes, or pay garnishments through an EFT, or such other payment method as required by Counter Point.

• If Counter Point requires payments of Amounts Due by a wire transfer or other method, Client agrees to provide Counter Point with all information necessary to confirm receipt of the payment prior to the Funding Deadline.  In consideration for the additional costs incurred by Counter Point in providing wire transfer services, Client agrees to pay current fees for each wire transfer.

• If sufficient funds are not available on the Funding Deadline (“Client default”), Counter Point may take such an action to collect Amounts Due including, but not limited to, reissuance of the EFT and assessing insufficient fund fees of $150.00 per failure, as well as an additional $100.00 per day until lost funds are recovered. An EFT failure of greater than $50,000 will incur an additional fee of $0.72 per $1,000.00 per day. Additionally, Counter Point reserves the right to reverse any and all payroll transactions related to an unfunded payroll to recoup Counter Point’s lost funds.  Client acknowledges that Client is responsible for any delay in remittance of wages, garnishments, or taxes if Counter Point is unable to confirm receipt of funds prior to the Funding Deadline.

9.       NACHA COMPLIANCE/REPRESENTATIONS

1. Counter Point requires payment of all Fees or client liability (collectively “Amounts Due”) through an original EFT, Client (i) will execute all documentation needed by Counter Point to originate EFT transactions and to verify availability of funds in Client’s bank account; (ii) agrees that the funds representing the Amounts Due will be on deposit in Client’s bank account in collectible form and in sufficient amount when due (“Funding Deadline”); (iii) authorizes Counter Point to collect all Amounts Due from Clients bank account on the Funding Deadline; and authorizes Counter Point to initiate Entries on behalf of Client to its Receivers’ accounts and Client agrees to be financially responsible to Originating Depository Financial Institution (“Client’s Bank”) for all Entries initiated by Counter Point on Client’s behalf.  All EFT’s are performed in compliance with the National Automated Clearing House Association Operating rules (“NACHA”).  All  capitalized terms found in this section will have the meanings ascribed to such terms by NACHA.  

• Client agrees (i) to follow NACHA, as they are amended from time-to-time; (ii) to assume the responsibilities of an initiator of EFT’s, if applicable; (iii) that it will not initiate any EFT that violates any law; and (iv) that Counter Point may identify Client to banks involved in the EFT. Client further agrees that it will notify Counter Point, pursuant to applicable NACHA and federal regulations, if funding for Client’s payroll is received from a foreign financial agency.

• Client, as an Originator, also makes the following representations and warranties: 

1. Client (1) agrees to be bound by and warrants it will comply with the NACHA Rules, as the same may be amended from time to time, (2) warrants it will not submit Entries that violate the laws of the United States, (3) warrants it will comply with all U.S. laws, rules and regulations, including, as applicable, laws, rules and regulations applicable to IAT Entries (including those of the Office of Foreign Assets Control (OFAC) and the Financial Crimes Enforcement Network), (4) acknowledges and agrees that Counter Point shall have the right to audit Client’s compliance with the provisions of this Exhibit A, the Agreement and the NACHA Rules, and (5) acknowledges and agrees that Counter Point shall have the right to suspend or terminate initiating ACH transactions immediately upon notice to Client in the event Client breaches any of the NACHA Rules;

1. Client (1) certifies that it has not been suspended and does not appear on a National Association list of suspended Originators, and (2) warrants that it will not transmit any Entry if it has been suspended or appears on a National Association list of suspended Originators; 

1. Client acknowledges and agrees that Counter Point and Client’s Bank (1) may restrict certain types of Entries, (2) shall have the right to reject any Entry or series of Entries, and (3) shall have the right to reverse Erroneous Entries; 

1. Client represents, warrants and certifies that (1) prior to submission, each Entry has been properly authorized by Client and the Receiver in accordance with the NACHA Rules, including, but not limited to (a) the authorization has not been revoked, (b) the Agreement has not been terminated, (c) Client has no knowledge of the revocation of the Receiver’s authorization or termination of the agreement between the Receiver and the RDFI concerning the Entry, and (d) at the time the Entry is processed by a RDFI, the authorization for that Entry has not been terminated, in whole or in part, by operation of law, (2) Client will retain all authorizations for a minimum of two (2) years following termination or revocation of the authorization, and (3) Client will provide a copy of such authorization to Counter Point or Client’s Bank upon request; 

• Client represents, warrants and certifies that (1) all credit and debit Entries will be accurate and timely, and (2) each Entry will contain all information required by the NACHA Rules for specific Entry types, including, but not limited to, the

Receiver’s correct account number, dollar amount of the Entry, Client’s Name, Client’s Entry description; 

• Client  acknowledges and agrees  that (1)  Client shall  not provide an inaccurate Entry to Counter Point and will be responsible for promptly detecting and correcting any errors, (2) any Entry sent to Counter Point that identifies the Receiver inconsistently by name and account number may be processed by Client’s Bank based solely on the account number provided, (3) Counter Point is authorized to take such measures as Counter Point deems appropriate to carry out the intent of Client in completing any particular Entry, including, but not limited to, Counter Point may contact Client or may attempt to retransmit any Return Entry, and (4) subject to any limitations set forth in the applicable client services agreement with Counter Point, Client shall indemnify Counter Point, its parent, subsidiaries, predecessors, successors, affiliates, directors, officers, fiduciaries, insurers, employees and agents, for any claim, demand, loss, liability or expense (including reasonable attorneys’ fees, penalties, fines or interest) resulting from the debiting or crediting of any Entry or a breach of the Agreement; 

• Client agrees to implement and maintain safeguards to protect against (1) any unauthorized access to confidential information being  stored, processed or transmitted in connection with Entries, and (2) submission of fraudulent Entries purportedly on Client’s behalf; and 

• Client represents and warrants, to the extent applicable, that (1) the origination of each IAT Entry shall comply with the laws and payment systems rules of the receiving country, and (2) any submission by Client requiring initiation of an IAT Entry by Counter Point shall include the name and physical address of each of Client and the Receiver, the account number of the Receiver and the identity of the Receiver’s bank, bank ID number and bank branch code.

10. IMPLEMENTATION FEES/REFUND/ADJUSTMENT/OVERPAYMENT

1. After Client has agreed to enter into the Agreement and Counter Point has begun the onboarding process, Client will be responsible for paying certain non-refundable setup fees as well as all fees incurred by Counter Point to integrate Client with separate vendors (collectively “Implementation Fees and Expenses”).  Implementation Fees and Expenses will be charged and incurred by Client upon starting the onboarding process for services and are deemed non-refundable even if Client terminates the Agreement.  At its sole discretion, Counter Point may reduce or waive the Implementation Fees and Expenses owed by Client to Counter Point.

• In the event of a Client default, Counter Point may, at its sole discretion, terminate the Agreement or a portion thereof, without notice and declare all Amounts Due immediately due and payable. Client agrees to promptly reimburse Counter Point for all advances or overpayments made by Counter Point and to pay interest on the advances at the rate of one and one-half percent (1.5%) per month, or the maximum allowable by applicable law, until paid. Client agrees that Counter Point may initiate an EFT to Client’s bank account for any past Amounts Due. Client will be responsible for the costs of collection of Amounts Due including, but not limited to attorneys’ fees and court costs. 

• Client agrees that Counter Point may apply all balances it is holding for Client to Amounts Due owed to Counter Point. In the event Counter Point remits an overpayment of payroll taxes, Counter Point may, at its sole discretion, advance funds to Client. In the event Counter Point advances overpayment funds to Client, then Client agrees that it will reimburse Counter Point for the overpayment within the sooner of five (5) days of (i) receiving the overpayment amount from the taxing authority; or (ii) being notified that the overpayment amount would be applied to an outstanding tax liability of Client; or (iii) the Agreement being terminated by either party.

11. USE OF SERVICES AND RELATED LICENSE

1. The Services, Software and the Counter Point Website contain proprietary and confidential information that is protected by intellectual property laws and treaties. For example, the content and compilation of content included on the Counter Point Website such as sounds, text, graphics, logos, icons, images, audio clips, digital downloads and software, are the property of Counter Point, its affiliates or licensors and are protected by United States and international copyright laws. Such copyright protected content cannot be reproduced without Counter Point’s express permission.

• Counter Point and/or its licensors retain exclusive ownership of the Services and Counter Point Website and all intellectual property therein (whether or not registered and anywhere in the world). You will not take any action to jeopardize, limit or interfere with Counter Point’s and/or its licensors’ intellectual property rights in the Software, Products and/or Counter Point Websites. You expressly disclaim the passing of title to the Services or any other proprietary rights to you by virtue of this Agreement.

• Counter Point has filed applications to register its trademarks and its trademarks and trade dress may not be used in connection with any product or service that is not Counter Point’s, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Counter Point. All other trademarks not owned by Counter Point or any of its related companies that appear on this site are the property of their respective owners. You are not permitted to and shall not register or use any trade name, trademark, logo, domain name or any other name or sign that incorporates any of Counter Point’s intellectual property (in whole or part) or that is confusingly similar thereto.

• In consideration of Counter Point providing the Services to Client, Client shall also not: make the Services available to anyone other than Client’s employees; (ii) copy any features, functions or graphics of the Services; (iii) sub-license, sell, assign, rent, lease, export, import, distribute or transfer or otherwise grant rights to any third party; (iv) use the Services to store or transmit infringing, libelous, or otherwise unlawful material, or to store or transmit material in violation of thirdparty privacy rights; (v) use the Services to store or transmit viruses, worms, time bombs, Trojan horses, and other harmful or malicious code, files, scripts, agents or programs; (vi) interfere with or disrupt the integrity or performance of the Services; (vii) attempt to gain unauthorized access to the Services or related systems or networks. (viii) use the Services if Client is a direct competitor of Counter Point or acting on behalf of a direct competitor of Counter Point; (ix) use the Services for purposes of monitoring the Services’ availability, performance, or functionality; (x) use the Services for any other benchmarking or competitive purposes; (xi) copy, frame, or mirror any part or content of the Services; (xii) undertake, cause, permit or authorize the modification, creation of derivative works or improvements, translation, reverse engineering, decompiling, disassembling, decryption, emulation, hacking, discovery or attempted discovery of the source code or protocols of the Services or any part or features thereof; (xiii) remove, obscure or alter any copyright notices or other proprietary notices included in the Services; (xiv) use the Services or cause the Services (or any part of it) to be used within or to provide commercial products or services to third parties; (xv) use the Services in any time- sharing or service bureau arrangement; and (xvi) make any claim to be a third party beneficiary of Counter Point’s rights under any license agreement related to the provision of the Services or acknowledge that this Agreement does not give Client rights as to such license agreement.

• Subject to your compliance with the Agreement, you are granted a limited, non- exclusive, non-sublicensable, nonassignable, license to the Software necessary to utilize the Services via your Online Account on a personal computer, mobile phone or other suitable device. Counter Point reserves all intellectual property rights not expressly granted to you under the Agreement.

• If the Services purchased by you includes a time and attendance product for the purposes of tracking employee attendance, there is a minimum term of twelve (12) months for the use of any purchased or leased time clock with an early termination fee of $650 if this service is terminated prior to the twelve-month period.  The setup fees for such product shall be valid for a period of ninety (90) days from the date of execution of this Agreement and if the Client does not implement the Product within setup period, the setup fees shall be forfeited and the Client shall be required to pay new setup fees. Client purchased time clocks require an additional monthly fee for access to technical support, software updates, and other services related to the time clock usage.  Leased clocks must be returned within thirty (30) days of termination or will incur a replacement fee if not returned in good working order within that time.  

• If the Services purchased by you includes HR Elite Services, HR Expert Services, HR Essential Services, ATS, LMS or LMS Pro, each such service requires a minimum term of twelve (12) months.  Accordingly, in the event Client terminates any of these Services within the initial twelve (12) months from the start of the Service, the remaining balance shall become immediately due.

12. TERMINATION OF YOUR AGREEMENT WITH COUNTER POINT

1. Except as otherwise provided, either you or Counter Point may terminate the Agreement upon ninety (90) days-notice provided to the other party. Counter Point may immediately terminate the Agreement, or a portion thereof, if: (i) Client becomes subject to receivership, bankruptcy, or is insolvent; (ii) Counter Point, in its sole discretion, determines that a material adverse change has occurred in the financial condition of Client; (iii) Client fails to have sufficient funds on the Funding Deadline; (iv) Counter Point determines, in its sole discretion, that any federal, state, or local legislation, regulatory action, or judicial decision adversely affects its interests under the Agreement; (v) in respect of a particular Service, on thirty (30) days-notice if Counter Point decides to cease offering that Service; (vi) Counter Point reasonably suspects that you or someone on your behalf are using the Services to break the law or infringe upon third party rights; (vii) reasonably suspects that you are using our Services fraudulently or that your Online Account is being used by a third party fraudulently; or (viii) you are in breach of the Agreement. Termination by Client without 90 days written notice shall result in a one-time termination fee equal to the last complete month of billing. Termination of the Agreement will not relieve Client of any obligations, including, but not limited to, its payment obligations. Human readable data can be accessed after termination for an annual, non-refundable payment of $450.00 or a fee of $3.00 per active employee, whichever is greater.

• Counter Point shall affect such termination by preventing your access to your Online Account or any other available user account (as applicable). Counter Point reserves the right to cancel your access to the Online Account if it has been inactive for more than ninety (90) days during a one (1) year period.

• Upon termination of your relationship with Counter Point: (a) all licenses and rights to use the Services shall immediately terminate and (b) you will immediately cease any and all use of the Services and Online Account.

13. EXCLUSION OF WARRANTIES, LIMITATION OF LIABILITY

1. For the purposes of this section, “Counter Point” includes its affiliated legal entities and all their directors, officers, agents, licensors and employees.

• TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES ARE PROVIDED “AS IS” AND PROVIDED WITH NO WARRANTIES WHATSOEVER; COUNTER POINT DOES NOT MAKE ANY WARRANTIES, CLAIMS OR REPRESENTATIONS AND EXPRESSLY DISCLAIMS ALL SUCH WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SOFTWARE AND SERVICES INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR USE FOR A PARTICULAR PURPOSE. COUNTER POINT FURTHER DOES

NOT REPRESENT OR WARRANT THAT THE SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE, NOR DOES COUNTER POINT WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET.

• From time to time, Counter Point may need to perform maintenance on or upgrade the Software or the underlying infrastructure that enables you to use the Services. This may require Counter Point to temporarily suspend or limit your use of some or all of the Software until such time as this maintenance and/or upgrade can be completed. You will not be entitled to claim damages for such suspension or limitation of the use of any Software. Counter Point cannot guarantee that the Software will always function without disruptions, delay or errors.

• YOU ACKNOWLEDGE AND AGREE COUNTER POINT WILL, UNDER NO CIRCUMSTANCES, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS INCURRED BY CLIENT PURSUANT TO THIS AGREEMENT OR BY THE TRANSACTIONS CONTEMPLATED BY IT, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY (INCLUDING CONTRACT, TORT, OR WARRANTY), OR AS A RESULT OF COUNTER POINT’S EXERCISE OF ITS RIGHTS UNDER THE AGREEMENT, EVEN IF COUNTER POINT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

• NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, COUNTER POINT’S TOTAL AGGREGATE LIABILITY TO YOU IN CONNECTION WITH ANY CLAIM UNDER THE AGREEMENT (WEATHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OF LIABILITY) FOR ANY DAMAGES OR LOSS (MONETARY OR OTHERWISE) MADE BY CLIENT OR ANY THIRD PARTY SHALL NOT EXCEED THE AMOUNT PAID BY CLIENT FOR THE SERVICES IN THE 12 MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE OF THE EVENT GIVING RISE TO THE RELEVANT CLAIM, SUBJECT TO A MAXIMUM OF TEN THOUSAND DOLLARS IN ALL CASES.

14. USE OF THIRD-PARTY SERVICES

a. At Client’s option, Client can integrate certain third-party services into the Services. These third-party services are not provided by Counter Point. Client agrees to hold harmless and release Counter Point from any liability relating to Client’s use of third- party services or integration of the Services with third-party Services. Client’s ability to use third-party services may be limited according to the third-party’s terms and conditions. When Client integrates with a third-party service, Client authorizes Counter Point to share any Client Information, including Client Confidential Information, as may be needed by the third-party to provide the third-party services. Counter Point is not liable for any disclosure of Client Confidential Information by any such third-party. 

15. CLIENT DATA SECURITY REQUIREMENT

1. Client is solely responsible for implementation of an information security program appropriate to safeguard Client’s computer systems, and the Online Account and Online Account Access, which is consistent with all applicable federal, state, and/or local statutes or regulations; safeguarding Online Account and Online Account Access for any third-party services integrated into the Services; maintenance and routine review of computing and electronic system usage records (i.e. log files); and the security of its own data, data storage, computing device(s), other electronic systems, and network connectivity. Such information security program shall also include at a minimum the routine and timely patching and updating of all software used by Client.

• Client shall protect Client’s computer systems, and the Online Account and Online Account Access, against the risk of penetration by, or exposure to, an unauthorized third party. Client shall implement and maintain current industry standard anti-virus measures to detect, prevent and remove computer viruses and/or other contaminants designed to damage, alter, delete, disable, or permit unauthorized access to, Client’s computer systems, and the Online Account and Online Account Access, and to prevent the spread of computer viruses between the parties which access or exchange data or software through any network connectivity. Client represents and warrants that Client shall not introduce into Counter Point’s computer systems, databases, or software, any computer viruses, worms, trap doors, trojan horses, spyware, adware, hoaxes, extraneous programming, malware or harmful code, unauthorized remote access or administration tool programming or similar unauthorized program and malicious code that does or can disable, damage, corrupt, interfere with or delete any element of software, data, computer or electronic records or files, including, but not limited to, that which allows Client or any third party to access Counter Point’s computer, telecommunication and/or other information systems without Counter Point’s prior authorization. Client shall not in any way tamper with, compromise, or attempt to circumvent any physical or electronic security or audit measures employed by Counter Point.

• Client shall not access or utilize the Services for any purpose other than that using the Services pursuant to this Agreement. Client shall monitor all applicable Client systems for security breaches, potential breaches and suspicious activity. In the event Client discovers or is notified of a breach of security relating to Client’s computer systems, or any other event that compromises the security, confidentiality or integrity of and the Online Account and Online Account Access (an “Incident”), Client shall, as promptly as practicable under the circumstances (i) notify Counter Point of such Incident, (ii) investigate and mitigate, or if possible, remediate, the effects of the Incident and (iii) provide Counter Point with a written corrective action plan, that is satisfactory to Counter Point, regarding how Client intends to mitigate or remediate future Incidents of such a nature.

16. INDEMNIFICATION

a. You will indemnify and hold Counter Point and its respective officers, directors, and employees harmless from and against all damages, liability, loss, costs, attorney’s fees (including in-house counsel fees) and related expenses should any third party or Client employee bring a claim against Counter Point in connection with, or arising out of (i) a Client default; (ii) the use, misuse, reproduction, modification, or unauthorized distribution of Software; (iii) Client’s breach of NACHA; (iv) Client’s breach of any warranty set forth in the Agreement; (v) Client’s infringement or violation of the rights of any third parties (including intellectual property rights), including but not limited to a claim based on: (a) symbols, logos, or marks uploaded by Client or Client’s agents, or printed on Client’s handbooks or checks and (b) Client Information; (vi) Client’s willful misconduct, fraud, gross negligence or actionable wrongdoing; (vii) damage, loss or destruction of any real, tangible or intangible personal property caused by the conduct of Client; (viii) Client’s breach of any law of regulation, including the failure to obtain proper consents necessary to comply with a biometric privacy law; (ix) the breach of any obligation pursuant to this Agreement by any employee, director or affiliate of Client; and (x) any use (proper or improper) of the Online Account.

17. CLIENT OBLIGATIONS FOR CERTAIN SERVICES

1. Payroll Services. Counter Point will process Client’s payroll based solely on Client Information provided by the Client, prepare payroll checks drawn on Client’s bank account or as otherwise directed by Client in this Agreement, prepare payroll reports for each payroll processed by Client, and provide the payroll reports, checks, and/or payroll check stubs to Client for review and distribution. Counter Point will prepare payroll tax returns for taxes identified on the Tax Report for Payroll or Recap and Funding Report and deliver to Client for the Client to review, sign, and file. Counter Point will not be responsible for any payroll submitted without control totals or on a form or vehicle, not provided by or approved by Counter Point in writing. Counter Point will not be responsible for the remittance of payroll taxes, or other taxes, or for the filing of tax returns for Clients who elect not to utilize the Tax Service.

• Tax Services.  One banking day before Client’s check date, Counter Point will (i) process EFT transactions for such amounts as are necessary to pay the payroll taxes that are specifically identified on the Cover Letter, Tax Report for Payroll Recap and Funding Report or Payroll Summary; (ii) hold such amounts in a separate account until such time as these amounts are due to the appropriate taxing authorities; and (iii) prepare, sign, and file with proper taxing authorities all returns for such taxes on an ongoing basis. Counter Point is not responsible for the payment of taxes or the filing of returns prior to the start of this Agreement, or for the payroll taxes which Counter Point did not collect from the Client. Counter Point, at its sole discretion, may require a wire to cover Client’s payroll taxes, should the payroll taxes generated exceed 125% of Client’s established payroll tax history with Counter Point.

• Direct Deposit.  Counter Point will process EFT Transactions, one or more banking days prior to Client’s check date, for such amounts as are necessary to pay Client’s employees. Such amounts are to be held in an account established by Counter Point until Client’s check date, when funds will be deposited to employee accounts as specified. Certain accounts may have restrictions on deposits and withdrawals. Counter Point, at its sole discretion, may require a wire to cover Client’s payroll should the payroll generated exceed 125% of Client’s established payroll history with Counter Point. Client’s employees are solely responsible for determining whether their account is suitable for the direct deposit of requested EFT Transactions.

• Bank Check.  Counter Point will (i) process EFT Transactions, one or more banking days prior to the Client’s check date; (ii) hold such amounts in an account established by Counter Point until Client’s check date; and (iii) draw checks payable to Client’s employees on Client’s check date and provide those checks to Client. Client will distribute checks on check date or thereafter. Checks distributed to employees before check date will not be honored and it will be Client’s responsibility to pay the employees. Each check presented before Client’s check date will incur an additional fee of $50.00 per check, early presentation fee. If Client’s employee fails to present a check for payment within 12 months of check date (“Stale Check”), Counter Point will refund the amount debited for the Stale Check back to the Client, minus any balances owed by Client, and charge a fee for the transfer of the Stale Check funds back to Client. Client will be solely responsible for remitting to its employee, or former employee, any amounts due and following any state unclaimed property laws in regard to outstanding employee funds. If a Trust Service check is lost, stolen, destroyed, or otherwise not able to be cashed (“Voidable Trust Service”), Client agrees to notify Counter Point immediately and request the check to be voided. If the original check cannot be located, Client will be billed $45.00 per check to replace a lost check. Client agrees to return any Voidable Trust Service Checks for which a refund has been requested or issued if it should be ultimately found or discovered. If the voided check is cashed, negotiated, or otherwise presented for payment, and

the financial institution that the Trust Service check is drawn upon requires a lost/stolen check affidavit, Client agrees that Client is responsible for producing the affidavit.  Client agrees to be responsible for any duplicate checks created and presented for payment.

• General Ledger Custom Interface.  For Clients using the General Ledger Service with each payroll processed, the Client’s general ledger reports or data will be available to run or export to be integrated into specific third-party accounting software packages. Client understands that it is the Client’s responsibility to communicate all General Ledger alterations as they occur, and recognizes that if they fail to do, so any errors or import failures are the sole responsibility of the Client.

• Auto processing of Payroll. If Client authorizes the automatic production/processing of payroll each pay period, any changes must be reported to Counter Point 48 hours before process day. Payroll will continue to process until notified by Client in writing.

• ACA Services.  If the Services purchased by you include Affordable Care Act reporting services (“ACA Services”), you agree that to the extent that you are an entity that is treated as a single employer under Internal Revenue Code §§ 414(b), (c), (m), or (o) (“Controlled Group”), the parent entity of the Controlled Group will also receive ACA reporting – which includes all of the reporting Counter Point provides Client as ACA Services, should the parent company elect to receive the ACA Services.  ACA Reporting Services consist of the following services: (1) for large employer reporting, Counter Point will provide Client  an estimated calculation of full-time employees and full-time equivalent employees each month in a format which Client can manipulate and calculate whether Client is an  applicable  large employer as of the date of the calculation; (2) for full-time employee reporting, Counter Point will provide Client with reporting that monitors all current and new employees within Client’s selected measurement,   administrative, and stability periods and calculate whether an employee is a full-time employee; and (3) for end of year reporting, Counter Point will provide Client reporting for full time employee status and coverage offered information for each employee active during the current   calendar year and estimate how many full time employees Client will be required to furnish 1095-C  form information.  Client authorizes and directs Counter Point to provide direct access services pursuant to IRC Section 6056 for reporting information related to health insurance coverage offered under employer-sponsored plans.

18. INTEGRATION OF PRIOR AGREEMENTS

a. The Agreement, along with the applicable services pricing schedule listing those services chosen by you, contains the entire understanding of the parties and supersedes all previous understandings and agreements between the parties for the Services provided, whether oral or written, including, without limitation, any confidentiality or nondisclosure agreement(s) entered by and between Client and Counter Point prior to the date hereof.

19. ASSIGNABILITY

a. The Agreement may not be assigned by the Client to any third parties. Any assignment made by Client is considered null and void.

20. GOVERNING LAW AND ARBITRATION AGREEMENT

1. The Agreement and all aspects of the relationship between Counter Point and Client shall be governed exclusively by the laws of the State of New Jersey without regard to, or application of, its conflict of laws, rules, and principles, except for the arbitration agreement contained herein which shall be governed exclusively by the Federal Arbitration Act, 9 USC § 1, et seq.

• THE PARTIES KNOWINGLY WAIVE THEIR CONSTITUTIONAL RIGHT TO BRING ANY OF THEIR CLAIMS IN A COURT OF LAW OR TO HAVE SUCH CLAIMS HEARD BY A JURY.  EXCEPT AS PROVIDED HEREIN, ANY DISPUTE ARISING OUT OF, IN CONNECTION WITH, OR RELATING TO THE AGREEMENT WILL BE DETERMINED ONLY BY BINDING ARBITRATION IN BERGEN COUNTY, NEW JERSEY, BY A SOLE ARBITRATOR IN ACCORDANCE WITH THE COMMERCIAL RULES OF THE AMERICAN ARBITRATION ASSOCIATION. ARBITRAL DISPUTES INCLUDE, WITHOUT LIMITATION, DISPUTES ABOUT THE FORMATION, INTERPRETATION, APPLICABILITY, OR ENFORCEABILITY OF THE AGREEMENT AS WELL AS ANY CLAIMS ARISING OUT OF THE RELATIONSHIP OF THE PARTIES THAT IS IN ANY WAY ALSO RELATED TO THE AGREEMENT. FOR THE AVOIDANCE OF DOUBT, IT IS THE INTENT OF THIS SECTION TO BROADLY AND INCLUSIVELY CONSTRUE CLAIMS THAT MAY BE SUBJECT TO ARBITRATION.

• A separate neutral arbitrator must be selected and appointed for each dispute. Any dispute arising under the Agreement must be brought within two (2) years of when Client first becomes aware of the claim or when the claim first accrued, whichever is earlier, or the claim will be deemed time-barred. The arbitrator will not be authorized to award exemplary

or punitive damages, or any damages excluded in the Limit of Liability provision. The parties agree that the prevailing party in arbitration, and any subsequent judicial proceeding to enforce an arbitration award, will be awarded costs and attorney’s fees (including in-house counsel fees) and that an arbitration award may be entered as a judgment in any court having jurisdiction over either party to the Agreement. The parties will not be permitted to bring, or participate in, and the arbitrator will not have any authority or jurisdiction to hear or decide, any claims brought as any type of purported class action, coordinated action, aggregated action, or similar action or proceeding. Each party must only bring claims against each other in their individual capacity.

21. MISCELLANEOUS

1. Counter Point does not consider or accept unsolicited proposals or ideas, including without limitation ideas for new services, services names, services feedback and related improvements (“Unsolicited Feedback”). If you send any Unsolicited Feedback to Counter Point, you acknowledge and agree that Counter Point shall not be under any obligation of confidentiality with respect to the Unsolicited Feedback.

• You agree to the use of electronic communication to enter into contracts, place orders, and create other records and to the electronic delivery of notices, policies and changes thereto and records of transactions with Counter Point.

• You acknowledge and agree that if Counter Point is unable to provide the Services because of a force majeure event, Counter Point will not be in breach of any of its obligations towards you under the Agreement. A force majeure event means any event beyond the control of Counter Point.

• If any provision of the Agreement (or part of it), is found by any court or administrative body of competent jurisdiction or an arbitrator to be illegal, invalid or unenforceable, then such provision (or part of it) shall be removed from the Agreement without affecting the legality, validity or enforceability of the remainder.

• The failure by Counter Point to exercise, or delay in exercising, a legal right or remedy provided by the Agreement or by law shall not constitute a waiver of Counter Point’s right or remedy. If Counter Point waives a breach of the Agreement, this shall not operate as a waiver of a subsequent breach of the Terms.