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The Master Services Agreement (“MSA”) executed by the customer set forth therein (“Customer”) and CAVU Holding Company, LLC and/or its subsidiaries, including but not limited to, CAVU Human Capital Management, Human Capital Management LLC, Baseline Payroll, Paymeister, and Sharp Payroll (collectively “CAVU”), and any order for services or products entered into in connection therewith (an “Order”) are expressly incorporated herein and made a part hereof. CAVU shall provide Customer with such payroll, tax, time and attendance, human resource and other data processing services as Customer may request from time to time in an Order or otherwise (the “Services”). All references herein to “Customer” shall also refer to Customer and its affiliates that are receiving the Services pursuant hereto.
Certain Services such as Secure Pay/Direct Deposit (CAVU deducts net payroll, workers’ compensation premiums, payroll deductions, vendor payments, garnishment payments and invoice amounts from Customer’s bank account or accounts and pays Customer’s employees from CAVU’s own bank account), are available only for as long as Customer meets CAVU’s eligibility requirements, which include, but are not limited to, credit checks of Customer and its principals, identification verification and other authentication procedures, and require execution of additional forms including, but not limited to, power of attorney with federal, state and local taxing authorities in which Customer has employees and an authorization to debit. Customer expressly authorizes CAVU to conduct a credit check of Customer pursuant to the foregoing.
1. THE SERVICES.
A. Security. If CAVU employees are located on Customer’s property, CAVU will advise such employees to observe the reasonable security policies of the Customer if such are communicated to CAVU sufficiently in advance in writing.
B. Use of Services. Customer will use the Services in accordance with the instructions and policies established by CAVU from time to time. Customer will use the Services only for the internal business purposes of the Customer. Customer will not provide, directly or indirectly, any of the Services or any portion thereof to any party other than the Customer.
C. Payment Services. If Customer is receiving any of the Services that require CAVU to impound funds from Customer’s account to pay Customer’s third-party payment obligations including, but not limited to, Tax Payments, SecurePay and/or Direct Deposit), Customer shall have sufficient, collected funds in Customer’s account within the deadline established by CAVU to satisfy such third-party payment obligations in their entirety. CAVU may commingle Customer’s impounded funds with other customer funds. ALL AMOUNTS/INTEREST EARNED ON SUCH FUNDS WHILE HELD BY CAVU WILL BELONG SOLELY TO CAVU. Services are subject to the operating rules of the National Automated Clearing House Association (“NACHA”). CAVU and Customer each agree to comply with the NACHA rules applicable to it with respect to the Services.
D. Accuracy of Customer Information, Review of Data. All Services provided hereunder will be based upon information provided to CAVU by Customer (including federal, state, and local tax identification numbers). The person signing the MSA, or such other person designated in writing by the person signing the MSA, is the Customer’s authorized payroll contact from whom CAVU will take all instructions and CAVU will not be liable for following those instructions. Customer agrees to remain responsible for any obligation imposed on Customer by law to maintain records regarding Customer’s business and employees. Customer further agrees to provide complete, accurate and timely information as necessary to the performance of Services under the MSA and any Order and to verify or correct such information as appropriate, on a timely basis. Customer also agrees and understands it is the Customer’s obligation to check all payroll and related documents for accuracy immediately upon receipt. Further, the accuracy and the integrity of the Services provided are limited by the nature of information the Customer provides. Customer will notify CAVU immediately, in writing, if any information in said records or reports is invalid or inaccurate. CAVU shall in no way be responsible for the accuracy of any information provided by Customer or Customer’s representatives. CAVU shall not be liable for errors, wage and hour violations, sex discrimination, or any other employment practices or policies of Customer which may or are found to violate any applicable law.
E. Insufficient Funds. CAVU’s responsibility to perform services under the MSA or applicable Order will automatically terminate should Customer’s funds be insufficient or otherwise to cover required payroll funds needed to complete processing by CAVU including, but not limited to, net payroll, related taxes, Workers’ Compensation Premiums and processing fees. Customer hereby agrees that if sufficient funds are not so available, Customer will be charged a fee of $100.00 per occurrence in addition to Customer’s obligation to indemnify CAVU for any cost or expense incurred by CAVU in connection with insufficient funds. CAVU reserves the right to debit Customer’s bank account, with or without notice, in the event of insufficient funds of any nature.
F. Customer Responsible for Compliance with Laws. The Services are designed to assist Customer in complying with applicable laws and governmental regulations. Nevertheless, Customer (and not CAVU) will be solely responsible for compliance by Customer with all laws and governmental regulations affecting its business, including, but not limited to, any use Customer may make of the Services to assist it in complying with such laws and governmental regulations. Customer will not rely solely on its use of the Services in complying with laws and governmental regulations. Customer understands and agrees no state or federal agency monitors or assumes any responsibility for the financial solvency of third-party tax filers.
G. SecurePay and/or Direct Deposit. With respect to SecurePay and Direct Deposit, prior to the first credit to the amount of any employee or other individual (a “Payee”), Customer shall obtain a signed authorization from such Payee (a “Payee Authorization”), which shall be in a form approved by CAVU and shall authorize the initiation of credits by Customer or CAVU to such Payee’s account and debits by Customer or CAVU to such account to recover funds credited to such account in error. Customer shall retain a copy of each Payee Authorization during the period such Payee Authorization is in effect and for two years thereafter and shall furnish such copy to CAVU upon request. Customer agrees not to distribute any SecurePay checks to Payees prior to 4:00 p.m. local time on the banking day immediately before pay date. Customer also agrees to timely cooperate with CAVU to recover funds erroneously included in any SecurePay checks issued to any Payee or credited to any Payee’s account in error. If Customer desires to stop payment on any SecurePay check, Customer shall provide CAVU with a written stop payment request in the form provided by CAVU. CAVU shall then place a stop payment order with CAVU’s bank within twenty-four (24) hours of CAVU’s receipt of such stop payment request. Customer shall not request CAVU to stop payment on any SecurePay check which represents funds to which the applicable Payee is rightfully entitled. Customer agrees to indemnify, defend and hold harmless CAVU and its affiliates and their successors and assigns from and against any liability whatsoever for stopping payment on any SecurePay check request by Customer and from and against all actions, suits, losses, claims, damages, charges, and expenses of every nature and character, including attorney’s fees, in any claims or suits arising by reason of stopping payment on such check, including claims made by a “holder in due course” of such check.
2. FEES; TAXES; PAYMENTS.
A. Fees. Customer shall pay CAVU for the Services indicated on the applicable Order at the rates and for the periods set forth thereon (assuming no changes in requirements, specifications, volumes or quantities). Customer shall pay CAVU for the Services added by Customer after the date thereof at CAVU’s then prevailing prices for such Services. CAVU may increase prices at any time after the effective time of the MSA or applicable Order. These prices do not include the charges referred to in Section 1(C) or monthly communication charges or communication installation charges, which will be paid by Customer. Customer will pay all invoices in full electronically when CAVU debits Customer’s bank account for net payroll and/or tax monies. If Customer fails to pay any amount due hereunder, whether by acceleration or otherwise, Customer, on written demand, shall pay interest at the rate of 1.5% per month (or the maximum allowed by law if less) on such past due amount from the due date thereof until the payment is made in full. Customer shall reimburse CAVU for any expenses incurred, including interest and reasonable attorney’s fees, in collecting any amounts due to CAVU hereunder.
B. Taxes. Customer shall be responsible for all applicable taxes, which shall be added to all payments hereunder, exclusive of taxes based on CAVU’s net income.
3. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THE MSA OR AN ORDER, CAVU EXPRESSLY DICLAIMS ANY WARRANTY, EITHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NON-INTERTUPTION OF USE, AND FREEDOM FROM ERRORS WITH RESPECT TO THE SERVICES, THE CAVU PRODUCTS, ANY CUSTOM PROGRAMS CREATED BY CAVU OR ANY THIRD-PARTY SOFTWARE DELIVERED BY CAVU TO CUSTOMER.
A. Ownership of Proprietary Rights. All business plans, educational material, agreements, documents, memoranda, customer lists or information, referral source information, computer programs (other than pre-packaged third–party software), tutorials and related documentation made available, directly or indirectly, by CAVU to Customer as part of the Services (the “CAVU Products”) are the exclusive property of CAVU or the third parties from whom CAVU has secured the rights to such CAVU Product. All rights, title and interest in or to any copyright, trademark, service mark, trade secret, and other proprietary right relating to the CAVU Products and the related logos, product names, etc. are reserved to CAVU or the applicable third party. The use of any software included in, or supplied by CAVU for use with, the CAVU Products, shall be governed by the Terms of Use (whether written, shrink-wrapped or online) delivered with such software.
B. Customer Infringement Indemnity. Customer will defend CAVU against, and pay damages assessed in, any suit or cause of action alleging that the CAVU Products infringe upon any United States copyright, trade secret, or other proprietary right of a third party, to the extent that any such suit or cause of action results from a Customer Infringement Event. “Customer Infringement Event” means (i) any alteration, change, modification and/or enhancement of the CAVU Products made by Customer or any third-party on behalf of Customer without CAVU express permission; (ii) Customer’s use of the CAVU Products in combination with any hardware, software or other materials not expressly authorized by CAVU, or use of other than the most current release of the CAVU Products that results in a claim or action for infringement that could have been avoided by use of the current release, (iii) use of the CAVU Products after Customer has been notified that the CAVU Products infringe upon the intellectual property rights of a third party, or (iv) use by Customer of unmodified CAVU Products after Customer has been informed of modifications that would avoid claims of infringement.
5. GENERAL PROVISIONS. CAVU is not, and will not be Customer’s official record keeper. Accordingly, Customer will, to the extent it deems necessary, keep copies of all documents and information of any kind and in any form (electronic, paper, or other) delivered to or by CAVU.
6. FUNDING; INDEMNIFICATION.
A. Funding. Customer shall indemnify and hold harmless CAVU from and against any loss, liability, claim, damage or exposure (including reasonable attorneys fees) arising from or in connection with any action, proceeding or claim made or brought against CAVU by any person or entity with whom Customer maintains a payroll account or funds, for any CAVU error, omission or failure incident or pursuant to CAVU providing the Services due to Customer’s refusal or inability to fund or reimburse such person or entity.
B. Debits. Customer shall be liable for debits initiated by CAVU hereunder. Customer unconditionally promises to pay to CAVU the amount of any unfunded payroll file (including any debit which is returned to CAVU because of insufficient or uncollected funds or for any other reason), upon demand and interest thereon at the rate set forth in Section 2(A).
C. Customer shall be liable for, and shall indemnify CAVU relative to, any loss, liability, claim, damage or exposure arising from or in connection with any fraudulent or criminal acts of Customer or Customer’s employees, agents, officers, directors, members or managers.
D. Customer agrees to hold harmless, defend and indemnify CAVU from and against any claims, suits, actions or causes of action brought against CAVU by any person or entity paid by CAVU pursuant to the MSA or an Order which in any way relates to said person or entity’s relationship with Customer, including, without limitation, wage and hour matters, labor or employment matters, and discrimination of any kind. Said indemnification expressly includes attorney’s fees incurred by CAVU.
7. LIMITATION OF LIABILITY. Except where elsewhere set forth herein, this Section 7 sets forth the full extent of CAVU’s liability for damages resulting from the MSA, including these General Terms, or the Services rendered or to be rendered thereunder or hereunder, regardless of the form in which such liability or claim for damages may be asserted, and sets forth the full extent of Customer’s remedies.
A. Customer Responsibility. Customer will solely be responsible for, and CAVU shall not be responsible for any liability related in any way to: (i) the consequences of any instructions Customer may give to CAVU, (ii) Customer’s failure to use the Services in the manner prescribed by CAVU, and (iii) Customer’s failure to supply accurate input information.
B. Errors and Omissions. CAVU’s sole liability to Customer or any third party for claims of any type or character arising from errors or omissions in the Services that are caused by CAVU shall be to correct the affected Customer report, data or tax agency’s filings, as the case may be. Upon the request of Customer, CAVU will correct any error or omission made by CAVU in connection with the Services at no additional charge to Customer, provided that, Customer shall be responsible for all cost of correction to the extent CAVU’s error or omission was due to good faith reliance on information or direction provided by Customer.
C. Tax Penalties and Interest Assessments. If as a result of an error or omission made by CAVU in performing any Tax Filing Services under the MSA or applicable Order, an applicable taxing authority imposes a penalty on or assess interest against Customer, CAVU will (i) pay all penalties resulting from CAVU’s error or omission and (ii) pay any interest charges imposed on Customer for the failure to pay funds to the extent and for the period that such funds were held by CAVU, provided that, Customer shall be responsible for all penalties, interest, and cost of correction to the extent CAVU’s error or omission was due to good faith reliance on information or direction provided by Customer. In any such case, Customer will be responsible for all additional taxes and any other interest charges..
D. LIMIT ON MONETARY DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN (OTHER THAN AND SUBJECT TO SECTION 7(B) AND SECTION 7(C) ABOVE), CAVU’S LIABILITY HEREUNDER, THE MSA OR ANY ORDER FOR DAMAGES (MONETARY OR OTHERWISE) UNDER ANY CIRCUMSTANCES FOR CLAIMS OF ANY TYPE OR CHARACTER MADE BY CUSTOMER OR ANY THIRD PARTY ARISING FROM OR RELATED TO THE SERVICES WILL BE LIMITED IN EACH INSTANCE TO THE LESSER OF (I) THE AMOUNT OF ACTUAL DAMAGES INCURRED BY CUSTOMER; OR, (II) CAVU’S CHARGES FOR THE AFFECTED SERVICES; PROVIDED, HOWEVER, THAT CAVU’S AGGREGATE LIABILITY HEREUNDER IN ANY CALENDAR YEAR WILL NOT EXCEED THE AVERAGE CHARGE FOR ONE PAYROLL PROCESSING PAID BY CUSTOMER TO CAVU FOR THE PAYROLL SERVICES DURING SUCH CALENDAR YEAR. CAVU WILL ISSUE CUSTOMER A CREDIT(S) EQUAL TO THE APPLICABLE AMOUNT AND ANY SUCH CREDIT(S) WILL BE APPLIED AGAINST SUBSEQUENT PAYROLL PROCESSING.
E. SecurePay/Direct Deposit. Neither CAVU nor the Originating Bank (bank or other financial institution CAVU uses to initiate banking transactions to and from Customer’s account, Taxing Authorities’ accounts, third party vendors’ accounts, and CAVU’s accounts) shall be liable for any damages to Customer arising from any decision to refrain from or delay originating debit/credit entries or issuing SecurePay checks and/or Direct Deposit in connection with Customer’s payroll (i) after reasonable efforts to verify such debit/credit entries by the required security procedure have failed; (ii) due to Customer’s credit worthiness; or (iii) because CAVU has not received timely funds from Customer as required by Section 1(C). Customer agrees that CAVU will not be liable for any damages to Customer arising from any bank or financial institution decision to withhold the release of a Customer payroll which is process on SecurePay checks and/or Direct Deposit. Regardless of any such delay in the release of SecurePay checks and/or Direct Deposit, Customer will still be obligated to pay CAVU for applicable payroll processing charges.
F. NO CONSEQUENTIAL DAMAGES. NEITHER CAVU NOR THE ORIGINATING BANK WILL BE RESPONSIBLE FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OROTHER SIMILAR DAMAGES (INCLUDING LOST PROFITS OR DIMUNITION IN VALUE) THAT CUSTOMER OR OTHER PARTY MAY INCUR OR EXPERIENCE IN CONNECTION WITH THE MSA, AN ORDER OR THE SERVICES, HOWEVER, CAUSED AND UNDER WHATEVER THEORY OF LIABILITY. THIS CLAUSE SHALL IN NO WAY BE INTERPRETED SO AS TO NEGATE ANY OTHER PROVISION HEREIN WHICH SETS FORH THE LIMITS OF LIABILITY FOR CAVU.
8. TERM AND TERMINATION; DEFAULT BY CUSTOMER; REMEDIES UPON DEFAULT.
A. Services. CAVU or Customer may terminate the MSA, and accordingly these General Terms, upon at least sixty (60) days prior written notice, without cause, to the other party. Upon such termination, CAVU’s obligation to provide any Services shall immediately and automatically cease upon the stated termination date.
B. Customer Defaults. Notwithstanding anything contained herein, CAVU may immediately terminate the relationship and MSA with Customer, if Customer: (i) defaults in the payment of any sum of money hereunder; (ii) defaults in the performance of any of its other obligations hereunder; (iii) seeks any protection or action in the Bankruptcy Courts or becomes insolvent, or if any substantial part of Customer’s property becomes subject to any levy/seizure, assignment, application or sale for or by any creditor or governmental agency; (iv) has any material adverse change (in CAVU’s sole opinion) in its financial condition; (v) any unauthorized credits or debits are initiated in Customer’s name; (vi) the Originating Bank notifies CAVU that it is no longer willing to originate debits and credits for any reason; (vii) the Authorization to Debit is terminated; (viii) Customer terminates or is terminated from the Tax Filing Services; or (ix) CAVU reasonably determines that Customer no longer meets CAVU’s eligibility requirements for such Services. Upon the occurrence of any of the foregoing events of default, CAVU may (in its sole discretion): (a) terminate the MSA and/or any or all Service(s); (b) declare all amounts due, and to become due, under any Order immediately due and payable; (c) require Customer deposit an amount equal to its average per processing charges or to prepay for future Services; and/or (d) if CAVU elects not to terminate any or all of the Services as permitted hereunder, CAVU may require Customer to pay its outstanding and all future third party payment amounts covered by the Services and/or CAVU’s fees and charges for the Services to CAVU by bank or certified check or by wire transfer as a condition to receiving further Services.
C. Post-Termination. If the MSA or any of the Services are terminated pursuant to Sections 8(A) or 8(B) above, CAVU shall be entitled to allocate any funds remitted or otherwise made available by Customer to CAVU in such priorities as CAVU (in its sole discretion) may determine appropriate (including reimbursing CAVU for payments made by CAVU hereunder on Customer’s behalf to a third party) and if any such Services are terminated, Customer will immediately (i) become solely responsible for all of its third party payment obligations covered by such Services then or thereafter due (including for Tax Filing Services, all related penalties and interest); (ii) reimburse CAVU for all payments made by CAVU on Customer’s behalf; and (iii) pay any and all fees and charges due and payable to CAVU relating to the Services.
D. Remedies Cumulative. The remedies contained in this Section 7 are cumulative and in addition to all other rights and remedies available to CAVU hereunder, by operation of law or otherwise.
9. GENERAL.
A. Assignment. CAVU may assign the MSA and any Order without the prior written consent of the Customer. Customer may not assign the MSA or any Order without the prior written consent of CAVU.
B. Inducement. Customer has not been induced to enter into the agreements set forth herein or the MSA by any representation or warranty not set forth herein or in the MSA. The MSA, any Order and the terms herein contain the entire agreement of the parties with respect to its subject matter. The MSA shall not be modified except in writing signed by CAVU and Customer. Customer expressly agrees and understands these General Terms may be modified in the sole discretion of CAVU upon notice to Customer.
C. No Third-Party Beneficiaries. With respect to the Services and CAVU Products covered hereby, CAVU suppliers, vendors, and referral partners shall receive the same indemnification and defense rights from Customer as set forth in Section 4(C) and may enforce the same disclaimers and limitation against Customer as CAVU may under Sections 3 and 6. Other than CAVU suppliers, vendors and referral partners who are intended third party beneficiaries with respect to Sections 3, 4(C), and 7 hereof, nothing herein creates, or will be deemed to create third party beneficiaries under the MSA or these General Terms. CAVU HAS NO OBLIGATION TO ANY THIRD PARTY (INDLCUDING, WITHOUT LIMITATION, CUSTOMER’S EMPLOYEES AND/OR ANY TAXING AUTHORITIES) BY VIRTUE OF THE MSA, AN ORDER OR THESE GENERAL TERMS.
D. Force Majeure. Any party hereto will be excused from performance under the MSA and any Order for any period of time that the party is prevented from performing its obligations hereunder as a result of an act of God, war, earthquake, civil disobedience, court order, labor dispute, pandemic, or other cause beyond the party’s reasonable control.
E. Non-Hire. During the term of the MSA and for a period of twelve (12) months after termination thereof, Customer shall not solicit the employment of any CAVU employee who has been involved in furnishing Services hereunder. Customer agrees and understands CAVU would be irreparably harmed by a violation or threatened violation of this Section 9(E) and agrees CAVU make seek injunctive relief to protect CAVU’s interest hereunder without the requirement for posting of bond.
F. Governing Law. The MSA, any Order and other agreement between the parties shall be construed and governed pursuant to the laws of the State of Georgia. Any dispute arising out of the MSA, any Order or these General Terms shall be brought in the Superior or State Court of Cobb County, Georgia. The parties hereto expressly consent to jurisdiction and venue in said courts and hereby waive any objection to said venue and jurisdiction or inconvenient forum.
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