Payroll Services Supplemental Agreement
This Payroll Services Supplemental Agreement (“PS Agreement”), together with the TakeOne Network Corp. Terms of Service Agreement available at https://www.wrapbook.com/legal/terms-of-service/ (the “ToS”), and any fully executed order form (each, an “Order Form”), set forth the terms and conditions under which TakeOne Network Corp., a Delaware corporation doing business as Wrapbook (“Wrapbook”), agrees to provide to User certain payroll services, as described herein (“Payroll Services”), which are provided through Wrapbook’s Platform. Wrapbook and User may be referred to herein individually as a “Party” and collectively as the “Parties.”
This PS Agreement constitutes “Service Terms” under the ToS. Upon full execution, any applicable Order Form shall be incorporated into and become part of this PS Agreement. The ToS, along with any other applicable policies published by Wrapbook on its Platform or provided to User, are incorporated into this PS Agreement by reference. Capitalized terms used but not otherwise defined in this PS Agreement shall have the meanings ascribed to such terms in the ToS. The PS Agreement is a legally binding agreement between User and Wrapbook. User is encouraged to read the PS Agreement carefully and to save a copy of it for User’s records. If User is agreeing to this PS Agreement on behalf of a business or an individual other than User, User represents and warrants that User has authority to bind that business or other individual to the PS Agreement, and User’s agreement to these terms will be treated as the agreement of such business or individual. In that event, “User” (as defined in the ToS) also refers to that business or individual. By (i) clicking the applicable button to indicate User’s acceptance of the PS Agreement, or (ii) accessing or using the Payroll Services, User accepts the PS Agreement, and User agrees, effective as of the date of such action, to be bound by the PS Agreement. Services under the PS Agreement shall not commence until the first date of the first completed payment for a project pursuant to this PS Agreement.
1. THIS PAYROLL SUPPLEMENTAL AGREEMENT IS PART OF AND GOVERNED BY THE ToS
The terms and conditions of the ToS agreed to in connection with the creation of User’s Account, including but not limited to all representations, warranties, covenants, disclaimers, limitations on liability, and agreements relating to the Services, are incorporated herein by reference, and User acknowledges and agrees that the representations, warranties, covenants, disclaimers, limitations on liability, and agreements contained in the ToS shall remain in full force and effect to the full extent provided therein.
If the terms and conditions of this PS Agreement conflict with the terms and conditions of the ToS, the terms and conditions of this PS Agreement shall control with respect to the provision of the Payroll Services. If the terms and conditions of this PS Agreement conflict with the terms and conditions of an Order Form, the Order Form shall control with respect to the provisions of the PS Services. THE ToS AVAILABLE AT HTTPS://WWW.WRAPBOOK.COM/LEGAL/TERMS-OF-SERVICE CONTAIN IMPORTANT INFORMATION REGARDING LIMITATIONS OF WRAPBOOK’S LIABILITY, WRAPBOOK’S WARRANTY DISCLAIMERS, USER’S DUTY TO MITIGATE DAMAGES, THE LAW GOVERNING THE EMPLOYER OF RECORD AGREEMENT, AND DISPUTE RESOLUTION PROCEDURES THEREUNDER.
2. PAYROLL SERVICES
Subject to the terms and conditions of this PS Agreement, Wrapbook will process payments to independent contractors (“User Contractors”) whom User identifies to Wrapbook in accordance with User’s instructions and applicable law. User is solely responsible for correctly classifying those working on its projects as independent contractors or employees in accordance with applicable law, submitting that classification for each such worker through the Platform, and shall indemnify, defend, and hold Wrapbook harmless from any Claims (as defined in Section 10) associated with User’s failure to classify its independent contractors or employees in accordance with applicable laws. Wrapbook’s obligations pursuant to this paragraph shall be subject to User’s timely and accurate submission of all data needed and timely approval and funding of all applicable payables, such as timesheets and invoices. User will cooperate with Wrapbook in the use of User’s Federal Employer Identification Number (FEIN) and state payroll tax account number(s) and authorizes Wrapbook to submit any necessary filings on User’s behalf, including any Form 1099s under User’s FEIN.
User shall use Payroll Services solely to perform payroll processing. Neither this PS Agreement, the ToS, nor the provision of Payroll Services to User creates an employment relationship between Wrapbook and User Contractors. Wrapbook has no employment, joint-employment, co-employment, common law, or other employment-like relationship with User Contractors. User acknowledges that Wrapbook is not providing User with Professional Employer Organization (PEO) services, employee leasing services, temporary agency services, or staffing agency services, pursuant to this PS Agreement, the ToS, or otherwise.
3. COOPERATION WITH WRAPBOOK
User will respond in a timely and accurate fashion to requests from Wrapbook for records and data necessary for Wrapbook to perform Payroll Services. User will cooperate with Wrapbook’s requests to communicate with or provide notices or acknowledgments to User Contractors or other third parties, including as required by law or by Wrapbook’s procedures. User, whether directly or through its Account Administrator or Authorized Representative, is also obligated to promptly notify Wrapbook of any third party notices that User may receive which could affect Wrapbook’s ability to effectively provide the Payroll Services or increase the likelihood that a Claim is brought against Wrapbook in connection with the Payroll Services.
4. TAXES AND FEES
User is responsible for paying and reporting all applicable taxes and governmental fees. Additionally, any tax imposed by any local, state, or federal taxing authority based upon User’s relationship with Wrapbook, including but not limited to sales or use tax, or gross receipts tax, shall be the sole responsibility of User.
5. BUSINESS AND OCCUPATIONAL LEGAL COMPLIANCE
User will comply with all laws governing User’s business, including, but not limited to, laws pertaining to required filings, licensing, taxes, fidelity bonding, insurance, facilities/building codes and regulations, and environmental compliance.
6. SERVICE FEES
User agrees to pay fees for the Payroll Services in accordance with the fee schedule at https://app.wrapbook.com/pricing, unless such User has entered into an Order Form, in which case the fees set forth in the Order Form shall apply. User shall pay invoices via reverse wire, unless otherwise agreed upon in writing with Wrapbook. If Wrapbook authorizes payment to be made by ACH debit, User hereby authorizes Wrapbook to debit any of User’s designated bank account via ACH (each a “Bank Account”). Wrapbook may, in its sole discretion and at any time, require User to provide one or more advance payments, guarantees, or other forms of security, including, without limitation, a letter of credit – which security must be in form and substance satisfactory to Wrapbook. Any advance payment or other security will not be maintained in a segregated account, will not bear any interest payable to User, and may be applied to any obligation of User, including the final invoice or payroll. User understands, acknowledges and agrees that it shall have no right to any interest or other income that may be earned by Wrapbook on advance payments or security provided by User. Wrapbook’s fees for Services are comprised of a combination of all the individually listed fees and rates and do not purport to represent Wrapbook’s actual net costs regardless of how fees and charges are presented on any invoice, proposal, or otherwise, including, without limitation, amounts identified as taxes, contributions, premiums, or deductibles. User acknowledges that Wrapbook is entitled to invest any fees or payments for the Payroll Services in accordance with its investment guidelines established from time to time and that Wrapbook, in its own capacity, is entitled to all income, interest, and gains derived from or realized from such investments and is not accountable to User, User Contractors, or any other person for such income or gains. In order to facilitate the timely payment, Wrapbook may pledge any investment related to the Payroll Services in connection with a loan, rather than convert such investment to cash for each payment, including tax payments. If Wrapbook incurs losses on the investment of any such funds, Wrapbook will make the required payments from its own funds. Wrapbook reserves the right to change the fees for Services from time to time. If a fee increase or change to this PS Agreement is not acceptable to User, User may terminate this PS Agreement as provided in the ToS prior to the time when such fee increase or change to this PS Agreement takes effect. User’s continued use of the services beyond the cancellation window constitutes User’s agreement to those changes. If Wrapbook is unable to collect fees due because of insufficient funds in any Bank Account or for any other reason, User must pay the amount due immediately upon demand, plus any applicable exceptions processing fees, bank fees, or charges for return items, plus interest at the lesser of 18% per annum or the maximum rate permitted by law, plus attorneys’ fees and other costs of collection as permitted by law.
7. USER VERIFICATION
In addition to the User Verification provisions in the ToS, User consents to and authorizes Wrapbook or any third party acting on Wrapbook’s behalf to obtain credit reports about User’s business, and to report adverse credit information about User’s business to others, including, but not limited to, the Internal Revenue Service and any applicable state taxing authorities. Wrapbook may, at its discretion, decline to offer the Payroll Services for any reason, including in the event that the Payroll Services enrollment process is not satisfactorily completed, Wrapbook is unable to verify satisfactory credit of User’s business, and/or for other lawful reasons.
8. LICENSE TO USE NAME AND LOGO
User hereby grants to Wrapbook a non-exclusive, world-wide, royalty-free, and fully paid license to use User’s name and logo on promotional materials, including, but not limited to, Wrapbook’s website, marketing materials, and sales presentations. Wrapbook’s use of your name and logo will be in accordance with any guidelines you provide. Upon User’s written request, Wrapbook will remove User’s name and logo from Wrapbook’s website and promotional materials.
9. LEGAL COMPLIANCE AT WORKSITES
User shall be solely responsible for compliance with all laws (whether denominated as statutes, regulations, ordinances, or otherwise) with respect to any worksites where User Contractors will provide services to User.
10. INDEMNIFICATION
User will indemnify, defend and hold harmless Wrapbook and its affiliates, officers, directors, employees, and agents (the “Wrapbook Indemnified Parties”), from and against any claims, disputes, demands, liabilities, damages, losses, costs, judgments, penalties, fines, and expenses (including, without limitation, reasonable legal and accounting fees) (collectively “Claim(s)”), arising out of or in any way connected with: (i) User’s access to or use of Wrapbook’s Services or Content; (ii) User Content; (iii) User’s violation or alleged violation of this PS Agreement; (iv) User’s violation or alleged violation of any third party right, including without limitation any right of privacy or publicity, or any right provided by any labor or employment law, rule, or regulation, or any intellectual property right; (v) User’s violation or alleged violation of any applicable law, rule, or regulation; (vi) User’s violation of the NACHA Rules; (vii) User’s negligence, fraudulent activity, or misconduct; (viii) any Wrapbook Indemnified Party’s use of or reliance on information or data furnished by User, User Contractor, User’s Account Administrator, or User’s Authorized Representative in providing the Payroll Services, or otherwise in connection with this PS Agreement; (ix) actions or activities that Wrapbook or any other Indemnified Party undertakes in connection with the Payroll Services or this PS Agreement at the direct request or instruction of anyone that Wrapbook or any other Indemnified Party reasonably believes to be User, an Account Administrator, or an Authorized Representative (each such action or activity, a “Requested Action”); (x) Wrapbook’s or any other Indemnified Party’s use of or reliance on information or data resulting from such Requested Actions; or (xi) User’s failure, or the failure of any Account Administrators or Authorized Representatives, to properly follow Wrapbook’s or other applicable third parties’ instructions with respect to the Services.
11. LIMITATION OF LIABILITY
IN NO EVENT WILL WRAPBOOK BE RESPONSIBLE FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR OTHER SIMILAR DAMAGES (INCLUDING WITHOUT LIMITATION, LOST PROFITS OR BUSINESS INTERRUPTION DAMAGES) HOWEVER CAUSED OR UNDER ANY THEORY OF LIABILITY EVEN IF WRAPBOOK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL WRAPBOOK’S TOTAL LIABILITY FOR ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM, SERVICES, OR CONTENT
EXCEED THE AMOUNT OF PROCESSING FEES THAT USER HAS PAID TO WRAPBOOK FOR USE OF THE PLATFORM, SERVICES, OR CONTENT IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE APPLICABLE CLAIM. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN WRAPBOOK AND USER.
12. NO PARTNERSHIP
Nothing contained herein shall constitute a partnership between, or joint venture by, the parties hereto or make either party an agent of the other. Neither party shall hold itself out contrary to the terms of this paragraph. Neither party shall become liable by any representation, act or omission of the other contrary to the provision hereof. This Agreement is not for the benefit of any third party and shall not be deemed to give any right or remedy to any third party whether referred to herein or not. No act, commission, or omission by any Party to this PS Agreement shall change this independent service provider relationship or be construed to render the Parties partners, joint venturers, or agents of each other. Nothing contained in this PS Agreement shall be deemed to permit either Party to conduct business in the name of or on account of the other party, to incur or assume any expense, debt, obligation, liability, tax, or responsibility on behalf of or in the name of the other Party or to act on behalf of or bind the other Party in any manner whatsoever.
13. TERMINATION
The Payroll Services and this PS Agreement will continue until they are terminated by either Party pursuant to the terms of this PS Agreement. User may terminate this PS Agreement upon thirty (30) days’ written notice in the event: (i) Wrapbook commits a non-curable material breach of this PS Agreement, or if Wrapbook fails to cure any remediable material breach or provide a written plan of cure to User within thirty (30) days of being notified in writing of such breach; or (ii) in the event of institution of bankruptcy, receivership, legal insolvency, reorganization, or other similar proceedings by or against Wrapbook under any section or chapter of the United States Bankruptcy Code, as amended, or under any similar laws or statutes of the United States or any state thereof, if such proceedings have not been dismissed or discharged within sixty (60) calendar days after they are instituted; or the legal insolvency or making of an assignment for the benefit of creditors or the admittance by Wrapbook of any involuntary debts as they mature or the institution of any reorganization arrangement or other readjustment of debt plan of Wrapbook not involving the United States Bankruptcy Code. Wrapbook may terminate this PS Agreement and the Payroll Services upon ten (10) days’ written notice to User. In addition to Wrapbook’s termination rights set forth in the ToS, Wrapbook may immediately: (i) suspend or restrict User’s Account; (ii) suspend or restrict User’s access to Payroll Services; (iii) block User’s ability to use any particular feature; or (iv) immediately terminate Payroll Services and this PS Agreement, in each case with or without notice to User, in the event that: (a) Wrapbook has any reason to suspect or believe that User may be in violation of this PS Agreement; (b) Wrapbook determines that User’s actions are likely to cause legal liability for or material negative impact to Wrapbook; (c) Wrapbook believes that User has misrepresented any data or information or that User has engaged in fraudulent or deceptive practices or illegal activities; (d) Wrapbook has determined that User is behind in payment of fees for the Payroll Services; or (e) User files a petition under the U.S. Bankruptcy
Code or a similar state or federal law, or a petition under the U.S. Bankruptcy Code or a similar state or federal law is filed against User. Furthermore, while Wrapbook strives to support a multitude of business and organization types, in certain unique situations, if Wrapbook cannot support the payroll-related filings for User’s business or organization type, Wrapbook may immediately terminate the Payroll Services and this PS Agreement upon written notice to User.
The termination of any of the Payroll Services or this PS Agreement will not affect the continuation of any outstanding obligation or liability incurred by either Party during the term of this PS Agreement or the User’s or Wrapbook’s rights with respect to transactions which occurred before such termination, provided that User shall pay for all Payroll Services provided up to and including the date of termination. The obligation of any party to notify, indemnify, defend and hold harmless the other under the terms of this PS Agreement will continue after the termination hereof with respect to events occurring prior to such termination. Notwithstanding the foregoing, Wrapbook will have no liability to User for any costs, losses, damages, penalties, fines, expenses, or liabilities arising out of or related to Wrapbook’s termination of this PS Agreement.
14. SEVERABILITY
Should any term, warranty, covenant, condition, or provision of this PS Agreement be held to be invalid or unenforceable by a court or other body of competent jurisdiction or pursuant to arbitration, the balance of this PS Agreement will remain in force and will stand as if the unenforceable part did not exist. The invalid or unenforceable provision will be replaced by a provision as similar as possible and which is valid and enforceable.
15. NOTICES
All notices and demands will be given in writing and transmitted by hand delivery, overnight courier delivery with signature required verifying receipt, or by e-mail transmission to the address provided by User in User’s Account and to Wrapbook via email at legalteam@wrapbook.com. All confirmations by mail shall be made by certified mail, postage prepaid, return receipt requested, or by overnight delivery with signature required. Notice will be considered given and effective when received. User understands, acknowledges and agrees that certain notices from Wrapbook will be sent by e-mail only and User shall have no right to opt out of e-mail notices or otherwise require that one or more notices to be sent by hand delivery, overnight courier or in any other form.
16. MODIFICATIONS
Wrapbook may modify this PS Agreement at any time, in Wrapbook’s sole discretion. If Wrapbook does so, Wrapbook shall let User know either by posting the modified PS Agreement on the Platform or Site or through other communications. It is important that User reviews the PS Agreement whenever Wrapbook modifies it because if User continues to use the Payroll Services after Wrapbook has notified User of the modification and the modified PS Agreement has been posted on the Platform or Site, User is indicating to Wrapbook that User agrees to be bound by the modified PS Agreement. If User does not agree to be
bound by the modified PS Agreement, then User may not continue to use the Payroll Services. Because the Platform and Services are evolving over time, Wrapbook may change or discontinue all or any part of the Platform, Services, or Wrapbook Content at any time and without notice, at Wrapbook’s sole discretion.
17. GENERAL
This PS Agreement is not assignable by User without the written consent of Wrapbook. Captions and organization are for convenience and will not be used in construing meaning. Wrapbook is an independent contractor of User and will not be its principal, director, agent, master, servant, or employee. This PS Agreement will be binding upon and inure to the benefit of the successors and assigns of the Parties. Time is of the essence with respect to performance of all obligations set forth herein. The following provisions will survive any termination or expiration of this PS Agreement: Section 3 (Cooperation with Wrapbook), Section 4 (Taxes and Fees), Section 6 (Service Fees), Section 8 (License to Use Name and Logo), Section 10 (Indemnification), Section 11 (Limitation of Liability), and Section 17 (General).