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.


  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.


  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.


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.


  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.


  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.


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.


  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.  


  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.


  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.  
  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; 

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


  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.


  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.


  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.


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



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. 


  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.


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.


  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.

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.


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.


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


  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.

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.


  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.
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