Please read this Terms and Conditions of Service Agreement (this “Agreement”) carefully. To be eligible to access, use, or receive any of the software, products, and services offered or made available by Seso, Inc. d/b/a Seso Labor, Inc. (“Seso,” “we,” “us,” or “our”), all customers of Seso must review and accept the terms set forth in this Agreement by executing or accepting the applicable ordering documents issued by Seso. If you enter into this Agreement on behalf of a legal entity, you represent that you are a duly authorized representative with the authority to bind that legal entity to this Agreement. All references to “Customer,” “you” and “your” in this Agreement mean the person accepting this Agreement as an individual or the legal entity for which the representative is acting. By accepting this Agreement, Customer agrees to be bound by these terms and conditions.  

THIS AGREEMENT CONTAINS AN AGREEMENT TO ARBITRATE IN SECTION 14 BELOW, WHICH REQUIRES, AMONG OTHER THINGS, THAT DISPUTES RELATING TO THIS AGREEMENT, YOUR ACCOUNT OR THE SERVICES MUST BE RESOLVED BY BINDING ARBITRATION. 

1.              CERTAIN DEFINITIONS.

(a)            “Ancillary Services” means any ancillary professional services provided by Seso, as identified in an Order Form.

(b)            “Customer Data” means all data and information submitted, stored, posted, displayed, or otherwise transmitted by or on behalf of Customer or any User and processed by the SaaS Services or Seso pursuant to this Agreement.

(c)            “Documentation” means printed, paper, electronic or online user instructions and help files made available by Seso to Customer for use with the Services, as may be updated from time to time by Seso.

(d)            “Effective Date” means the date that Customer signs the applicable Order Form.

(e)            “Employment Information” means Customer Data that is employment related data, information, content, records and files including employee roles, employment status, employment duration, POS proficiency, time & attendance, wage and pay rates, any data used to compute employee engagement scores, and other information specified by Seso in the SaaS Services from time to time, in each case that is loaded to, entered into, transmitted to, or otherwise made available to the SaaS Services or to Seso.

(f)             “Law” means all U.S. or non-U.S. national, regional, state, provincial or local law, statute, rule, regulation, ordinance, administrative ruling, judgment, decree, order, directive, or policy applicable to Seso’s provision of and your use of the Services.

(g)            “Maintenance Release” means any update, upgrade, release, or other adaptation or modification of the SaaS Services or the Documentation that Seso may provide to Customer from time-to-time during the Subscription Term, but excluding any New Version.

(h)            “New Version” means any new version of the SaaS Services or Documentation that Seso may from time-to-time introduce and market generally as a distinct licensed product (as may be indicated by Seso’s designation of a new version number), and which Seso may make available to Customer at an additional cost under a new Order Form or separate written agreement.

(i)             “Order Form” means Seso’s ordering document, executed by the Parties that references this Agreement and sets forth the particular Services to be provided pursuant to this Agreement, the fees therefor and any additional terms applicable thereto.

(j)             “Payroll Services” means the Payroll Managed Service and Payroll Self Services, as applicable.

(k)            “Payroll Managed Services” means the services set forth in Section 6(b) and Section 6(l)(i) with respect to the processing and distribution of payroll for Customer’s employees, to the extent set forth on an Order Form.

(l)             “Payroll Self Services” means the services set forth in Section 6(b) with respect to the processing and distribution of payroll for Customer’s employees, to the extent set forth on an Order Form, which services are made available through Seso’s proprietary software-as-a-service platform.

(m)          “Proprietary Rights” means any copyright, patent, trade secret, know-how, trademark, servicemark, trade name, rights of publicity, or other intellectual property or proprietary rights.

(n)            “SaaS Services” means the then-current version of Seso’s proprietary software-as-a-service platform and all services made available by Seso to Customer through such platform as identified in the relevant Order Form, including the Payroll Self Services (if applicable). 

(o)            “Services” means the SaaS Services, Payroll Managed Services and Ancillary Services (but excluding, for clarity, the Technical Services).

(p)            “Subscription Term” means the duration of Customer’s subscription to the applicable Services as set forth on an Order Form.

(q)            “Technical Services” means any implementation, training, or configuration services provided by Seso related to the Services, as identified in an Order Form.

(r)             “Users” means Customer’s employees and consultants (a) who are authorized by Customer to access and use the SaaS Services and (b) who have been supplied user identifications and passwords for such purpose by Customer (or by Seso at Customer’s request).

(s)            “Worker” means an individual assigned to an H-2 contract pursuant to the SaaS Services and who is employed or intends to be employed by Customer under a U.S. Department of Labor-approved Application for Temporary Employment Certification in a particular occupation and/or area.

2.              ORDERING SERVICES

(a)        Order Form. Customer may order the Services through an Order Form approved and authorized by Seso. Any order for the Services made pursuant to an Order Form is subject to the terms of this Agreement. An Order Form may contain additional or different terms, conditions, and information regarding the Services you are ordering as authorized and agreed to by Seso. In the event of any conflict or inconsistency between this Agreement and any Order Form authorized and agreed to by Seso, the applicable Order Form controls and governs over this Agreement, to the extent necessary to resolve the particular conflict or inconsistency only. Seso will provide the Services set forth in your Order Form and standard updates to the Services that we make generally available at no additional cost to customers during the applicable Agreement Term. Seso may, in our sole discretion, (i) discontinue the Services, or (ii) modify the features or functionality of the SaaS Services.

3.              ACCESS, USE AND RESTRICTIONS.

(a)            Access and Use. Subject to Customer’s compliance with the terms and conditions contained in this Agreement, Seso hereby grants to Customer, during the Subscription Term, a limited, non-exclusive, non-transferable right to allow its Users to access and use the SaaS Services under the applicable Order Form in accordance with the Documentation in each case solely for Customer’s internal business purposes and not for the benefit of any other person or entity. Customer agrees that its purchase of the SaaS Services is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Seso regarding any future functionality or features.

(b)            Documentation. Subject to Customer’s compliance with the terms and conditions contained in this Agreement, Seso hereby grants Customer a non-exclusive, non-sublicensable, nontransferable license to use the Documentation during the Subscription Term solely for Customer’s internal business purposes in connection with its use of the Services.

(c)            Restrictions. Customer shall not, directly or indirectly, permit any User or third party to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the SaaS Services; (b) modify, translate, or create derivative works based on any element of the Services or any related Documentation; (c) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the SaaS Services; (d) use the Services for timesharing purposes or otherwise for the benefit of any person or entity other than for the benefit of Customer; (e) remove any proprietary notices from the Documentation; (f) publish or disclose to third parties any evaluation of the Services without Seso’s prior written consent; (g) use the Services for any purpose other than its intended purpose; (h) interfere with or disrupt the integrity or performance of the SaaS Services; (i) attempt to gain unauthorized access to the SaaS Services or their related systems or networks; or (j) use the SaaS Service in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party, or that violates any applicable law.

(d)            Reservation of Rights. Except as expressly granted in this Agreement, there are no other licenses granted to Customer, express, implied or by way of estoppel. All rights not granted in this Agreement are reserved by Seso.

(e)            Suspension of Services. Seso may immediately suspend or terminate provision of and Customer’s access to any or all of the Services and Technical Services if: (a) Customer breaches Section 3(c), Section 4 or Section 6(c); (b) Customer’s account is 10 days or more overdue; (c) doing so would reasonably be expected to mitigate an actual or suspected security breach or threat; (d) changes to applicable laws or regulations or new laws or regulations require that Seso suspend a Service or otherwise may impose additional liability on the part of Seso or its service providers; or (e) Customer’s actions risk harm to any of Seso’s other customers or the security, availability, or integrity of a Service. Where practicable, Seso will use reasonable efforts to provide Customer with prior notice of the suspension (email sufficing). If the issue that led to the suspension is resolved, Seso will restore Customer’s access to the Service(s) and Technical Service(s), as applicable.

4.              CUSTOMER OBLIGATIONS.

(a)            Acceptable Uses. Customer shall be solely responsible for its actions and the actions of its Users and its other employees and contractors while using the Services. Customer agrees to abide by all local, state, national, and international laws and regulations applicable to Customer’s use of the Services, and Customer may not use the Services for illegal, fraudulent, unethical or inappropriate purposes.

(b)            User Accounts and Passwords. Seso will issue to Customer user logins and passwords for each of its Users authorized to access and use the SaaS Services. Customer shall be, and shall ensure that each of its Users are, responsible for maintaining the confidentiality of all user logins and passwords and for ensuring that each user login and password is used only by the User to which it was issued. Customer agrees to immediately notify Seso of any unauthorized use of any account or login and password issued to Customer’s Users, or any other breach of security known to Customer. Customer is responsible for all use of Customer’s User accounts, and Customer is responsible for compliance by each User and each of its other employees and contractors with the terms of this Agreement.

(c)            No Circumvention of Security. Neither Customer nor any User may circumvent or otherwise interfere with any user authentication or security of the SaaS Services.

(d)            Customer Data and Account Settings. The SaaS Services allow Customer and Users to submit, store and delete Customer Data. In addition, the SaaS Services allow Customer and Users to manage and edit certain information through their account settings page. Customer agrees and acknowledges Seso and its service providers rely on information furnished by Customer to provide the Services and Technical Services. You agree that by submitting any Customer Data to Seso through our platform or otherwise, you: (i) have reviewed and approved all such Customer Data, (ii) represent and warrant to Seso that the Customer Data is accurate and that no Customer Data will lead Seso to violate any applicable laws or regulations, (iii) waive and release any claim against Seso arising out of any errors in such Customer Data, and (iv) understand and acknowledge that Seso may rely upon the Customer Data provided and that Seso will not be responsible for errors that result from our reliance on the Customer Data. Seso has no obligation to verify the accuracy of Customer Data or any other information provided by Customer, and Seso will be relying solely on the accuracy, timeliness, and completeness of such information provided by Customer and its Users and other employees and independent contractors. Customer shall authorize Seso and its authorized third party service providers (and additionally with respect to Payroll Services, bank) to use Customer Data, including Employment Information, and any other data required for the Services and Technical Services.

(e)            Technical Services; Ancillary Services. Customer will give Seso timely access to materials, systems, and other resources reasonably needed for the Technical Services and Ancillary Services, and if Customer fails to do so, Seso’s obligation to provide Technical Services and Ancillary Services, as applicable, will be excused until access is provided. Seso will use such materials, systems, and other resources only for purposes of providing Technical Services and Ancillary Services. Customer may use Technical Services deliverables only as part of its authorized use of the Services and, subject to the same terms as for the Services in Section 3.

(f)             Efficient Equipment. Customer is responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer is also responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without your knowledge or consent.   

5.              ADDITIONAL SESO OBLIGATIONS

(a)            Updates. Seso will provide Customer with all Maintenance Releases that Seso may, in its sole discretion, make generally available to its licensees at no additional charge. Customer is required to accept all Maintenance Releases. All Maintenance Releases provided by Seso to Customer are deemed licensed to Customer in Section 3(a). Customer does not have any right hereunder to receive any New Versions that Seso may, in its sole discretion, release from time-to-time.

6.              PAYROLL SERVICES. The obligations in this Section 6 only apply if an active Order Form includes any Payroll Services.

(a)            Applicability and Payroll Services. If an Order Form indicates that “Payroll Self Services” or “Payroll Managed Services” are included in the Services, Customer hereby authorizes Seso (or its service provider) to process and distribute payroll for Customer’s employees. Customer acknowledges and agrees that Seso is not a bank or a financial institution, and that Seso relies on service providers to provide payroll processing functionality and facilitate associated payments in connection with the Payroll Services (such providers, “Processors”). Seso may replace the Processor from time to time in its sole discretion. Customer further acknowledges and agrees that in order for Customer to receive Payroll Services, Customer must execute applicable documentation as required by Seso or an applicable Processor, in each case through functionality and documentation provided through the SaaS Services, or otherwise as directed by Seso or such a Processor. Receipt of Payroll Services is subject to Customer’s satisfactory completion, as determined in such Processor’s sole discretion, of any and all onboarding tasks, including account verification and execution of required documentation. If Customer does not complete execution of required documentation within thirty (30) days following Customer’s execution of any Order Form for Payroll Services, and in the event that Seso replaces the Processor at any time thereafter, within thirty (30) days following Seso’s request that Customer execute new documentation, then Seso may terminate the Payroll Services and Customer’s and its Users’ access to the SaaS Services, in each case without liability to Customer. In addition, Customer agrees that Seso’s provision of, and Customer’s use of, the Payroll Services are subject to completion to Seso’s or the applicable Processor’s satisfaction of Seso’s or such Processor’s due diligence checks on Customer as Seso or such Processor requires in its sole discretion to meet its obligations under applicable law.

(b)            Seso Obligations. Subject to the terms and conditions of this Section 5, and Customer’s timely and proper performance of its obligations as set forth in this Section 5, the Payroll Services consist of the following:

             (i)                  preparation, deposit, and filing of Customer’s U.S. payroll taxes for those federal, state, and local jurisdictions listed by Customer upon initial payroll implementation process and any updates provided to Seso by Customer and confirmed by Seso in writing to Customer during any applicable active Subscription Term;

            (ii)                  preparation of a quarterly tax statement for each Federal Employer Identification Number (“FEIN”) or (“EIN”) and, where required, each state or local tax ID provided by Customer. This statement shall include a summary of tax liabilities reported throughout the quarter, account reconciliation, and printed returns filed at quarter end;

           (iii)                  filing of amended returns as required for returns processed by Seso. Charges may apply in the event the amended return is a result of incorrect information supplied to Seso by Customer or Customer’s representative;

           (iv)                  preparation and filing of W-2 agency filings;

            (v)                  facilitation of payroll payments from the Linked Account (as defined below) to Customer’s employees based on data provided by Customer to Seso, with such payments made by ACH; alternatively, or if elected by Customer (subject to additional fees), Seso shall print advices of payment and checks for Customer drawn from a Customer-designed account for associated payroll payments based on the information from each completed payroll provided by Customer. Except as otherwise set forth in Section 5(l) with respect to “Payroll Managed Services,” Customer must complete and approve its payroll before the applicable cutoff dates and times listed on the SaaS Services;

           (vi)                  facilitation of payment of Customer’s tax liabilities and wage attachments by the Bank, provided that Customer has previously deposited the corresponding funds in the Linked Account; and

         (vii)                  preparation and deposit of Customer’s wage attachment liabilities for those U.S. federal, state, and local payment processing units and any individual third party to which an employee of Customer owes a debt and has agreed or is compelled by appropriate governmental authority to resolve via attachment of employee’s wages, provided that Customer is solely responsible for (and the foregoing service obligation is conditioned on) the setup of wage attachments in the Services in accordance with the Seso online documentation. Seso shall make available a report of wage attachment activity to Customer summarizing funds collection and disbursement transactions completed. Seso is not obligated to commence or to provide the Payroll Services until Seso has received all information necessary to disburse wage attachment liabilities.

(c)            Customer Obligations. Customer hereby agrees to:

             (i)                  upon Seso making available to Customer any and all records of tax disbursements and wage attachments prepared by Seso or generated by the Services, examine all records for validity and accuracy according to Customer’s records and immediately notify Seso of any inaccuracies or inconsistencies. Seso shall not be responsible or liable for any invalidity or inaccuracy caused by Customer;

            (ii)                  provide information as reasonably requested by Seso in relation to its provision of Payroll Services, including without limitation, all information required by Seso and its service providers, including Processors, to facilitate payroll payments to taxing authorities and documents relating to prior payroll payments. Customer shall ensure all information provided to Seso is accurate, timely and complete. For the purposes of this Agreement, such information provided by Customer shall be considered Customer Data;

           (iii)                  immediately provide to Seso the revised Customer Data in the event of any changes or updates. Such updates must be provided (x) through the Services in the case of Payroll Self Services, and (y) via email to Seso at managedpayroll@sesolabor.com in the case of Payroll Managed Services. Customer hereby waives and releases any claim against Seso and shall be liable for any complaints from Customer’s employees arising out of or relating to any errors or omissions in the Customer Data, including without limitation, payroll information which Customer has not corrected or has not requested Seso to correct in an appropriate and timely manner;

           (iv)                  provide all information to Seso that Seso may request from time to time to satisfy due diligence obligations as required by applicable laws, in accordance with Seso’s, applicable service provider’s or bank’s policies and procedures;

            (v)                  cooperate with Seso in investigating any fraudulent or illegal transactions;

           (vi)                  remit any federal, state, and local liabilities incurred prior to enrolling in the Payroll Services and to submit any payroll returns to tax agencies that were due for payroll tax liabilities incurred before using the Payroll Services; and

         (vii)                  maintain in the Linked Account immediately available funds sufficient to cover all payroll disbursements, related fees, and payroll tax liabilities and any other amounts to be disbursed pursuant to the Payroll Services (collectively, the “Amounts Due”). Customer acknowledges and agrees that (x) no disbursements will be made in the event of insufficient funds in the Linked Account, and Customer will be responsible for all fees imposed by Processor or Customer’s bank in connection with same, (y) Processor may contact Customer directly regarding the insufficient funds and to attempt to re-initiate a debit to the Linked Account, and (z) the Payroll Services shall be automatically terminated (1) if with respect to a given occurrence of insufficient funds in the Linked Account to cover all Amounts Due, such insufficiency is not resolved with Customer in its entirety within 90 days, with termination effective upon the expiration of such 90-day period, or (2) effective upon the sixth occurrence of insufficient funds in the Linked Account to cover all Amounts Due;

        (viii)                  contact Seso immediately by email to payroll@sesolabor.com and change its password if it suspects its security credentials for accessing the Payroll Services are stolen, lost, used without authorization by the Customer or otherwise compromised. Customer’s delay in notifying Seso may affect the security of the Customer’s access to the Payroll Services and related accounts, and may result in losses which, to the extent arising from such delay, shall be borne entirely by the Customer; and

           (ix)                  adhere to National Automated Clearinghouse Association (“NACHA”) rules for the transfer of funds, as applicable.

Customer acknowledges and agrees that the data and all information from the completed payroll from the Payroll Service shall be the basis for payroll as provided for herein. Customer is responsible for viewing, in the SaaS Service or via the reports provided by Seso, as applicable, the payroll summary report and the cash requirement report prior to approving each payroll distribution.

(d)            Responsibility for Payment Instructions. To the extent allowed by law, Customer agrees to be bound by all payment instructions or transactions initiated through the SaaS Service in compliance with this Agreement, whether or not authorized. Customer agrees that Customer will be liable for all losses or payments resulting from (i) the theft, loss, compromise, or unauthorized use of Customer’s credentials and/or (ii) any losses or unauthorized payments resulting from any fraudulent or illegal compromise of Customer’s systems or processes. Customer agrees that Customer will be responsible and liable for payments or transfers containing inaccurate instructions or other errors, unless limited by law.

(e)            Availability of Funds. Customer agrees and acknowledges that Seso or its service provider shall not be liable for any claims, liabilities or losses arising directly or indirectly from Customer’s failure to make sufficient funds in the Linked Account. In the event that Seso incurs any financial obligations, liabilities or losses resulting, directly or indirectly, from Customer’s failure to make sufficient funds available in the Linked Account, including any legal or collection fees incurred, Customer shall reimburse Seso for all such obligations, liabilities and losses, and will indemnify Seso from and against all damages, liabilities, costs and expenses, including attorneys’ fees, incurred by Seso as the result of any such failure, including as the result of action or claim brought against Seso in connection therewith.

(f)             Disclaimer; Representations and Warranties; Consents. 

             (i)                  Customer acknowledges and agrees that (i) in performing the Payroll Services, Seso is not in a fiduciary capacity for the Customer; (ii) using the Payroll Services does not relieve Customer of its obligations under federal, state, provincial or local laws or regulations; (iii) Customer should not construe any information provided directly or indirectly by Seso through provision of Payroll Services to be legal, tax, or accounting advice; and (iii) the Payroll Services may not include all functions necessary for Customer’s operations or for Customer to meet all federal, state, provincial and local payroll reporting obligations applicable to the Customer. Customer further acknowledges and agrees that (A) Seso is not a co-employer or joint employer of Customer’s employees or other personnel, and is not a professional employer organization or an employer of record of Customer’s employees or other personnel; (B) the services performed by Seso pursuant to this Agreement do not constitute professional employer organization services; (C) Customer is solely responsible for recruiting, hiring, classifying, disciplining, and terminating its employees and for determining their wages, benefits, duties, responsibilities and work schedules; and (D) all payroll and tax filings for Customer shall be performed using Customer’s employer identification number (EIN).

            (ii)                  Customer acknowledges and understands that in providing the Payroll Services, Seso acts as an intermediary between Customer and its employees and/or independent contractors specifically and solely with respect to the delivery of payroll funds owed.

           (iii)                  Although Seso or its service provider may be authorized by Customer to act as Customer’s reporting agent with applicable tax authorities, Customer acknowledges and agrees that such authorization does not relieve Customer of its responsibility to (or from liability for failing to) ensure that all tax returns, tax deposits and payments are filed and made on a timely basis. Customer acknowledges that it is responsible for the timely filing of employment tax returns and the timely payment of employment taxes for its employees, notwithstanding Customer’s engagement of Seso to file the returns and make the payments on its behalf.

           (iv)                  The Internal Revenue Service requires enrollment in the U.S. Treasury Department’s Electronic Federal Tax Payment System (EFTPS) to monitor Customer’s account and ensure that timely tax payments are being made. IRS documentation that includes full FEIN and legal business name are required as proof of entity. Enrollment in the EFTPS may be done online at: www.eftps.gov, or by calling (800) 555-4477 for an enrollment form. State tax authorities generally offer similar means to verify tax payment and Customer is advised to contact the appropriate state tax authority directly for details. Seso shall not be liable for any fines, penalties, interest, or other related fees that accrue to Customer for its failure to provide proof of entity documentation as required by the IRS. Customer acknowledges that no state or federal agency assumes responsibility for the financial solvency of Seso.

            (v)                  Customer represents and warrants the following: (i) it does not currently conduct business with any individual or entity that is subject to sanctions by the Office of Foreign Assets Control of the U.S. Department of the Treasury, businesses and individuals on other government-maintained sanctions lists, or businesses or individuals in comprehensively sanctioned jurisdictions, including Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, and the so-called Donetsk People’s Republic and the so-called Luhansk People’s Republic of Ukraine; (ii) no payroll information submitted by Customer will result in entries that would violate the sanctions program of any U.S. government agency or any other applicable laws, rules, or regulations.

           (vi)                  Customer represents and warrants that it will:(1) comply with all applicable laws and provide Seso with documentation demonstrating its compliance upon request, (2) not take any action or fail to take any action likely to cause Seso to be in breach of any applicable laws, and (3) provide Seso with all timely assistance it reasonably requires to enable it to undertake any actions requested by any regulator in any jurisdiction, including for the purpose of compliance with any applicable laws or in connection with any investigation relating to any applicable law by a regulator.

(g)            Bank Accounts and Authorizations

             (i)                  To use the Payroll Services, Customer must associate and verify one or more valid bank account(s) with Customer’s use of the SaaS Services (the “Linked Account”). When Customer enters such account information for purposes of the Payroll Services, Customer represents and warrants that: (i) Customer has the authority to provide and disclose such information to Seso and (ii) Customer has the authority to authorize the initiation of ACH debit or credit entries, as applicable, with respect the Linked Account in accordance with any payment instructions provided in connection with Company’s use of the Payroll Services, and, as necessary, the initiation of adjustments or reversals as provided under the Agreement, or applicable law, rules or regulations. Customer shall provide to Seso any additional authorizations or information the Seso may require in order to provide the Payroll Services. In addition, Customer shall provide complete, accurate, and up to date information to Seso about such bank account at all times, including, but not limited to, information on the ownership of the account, and shall notify Seso promptly if the account information or ownership changes. Losses arising from Customer’s failure to provide complete or accurate information to Seso and/or failure to provide requested information or authorization within the required timeline shall be Customer’s responsibility. Customer agrees that each payment transaction that Customer initiates through the Payroll Services complies with the Agreement and applicable law, regulations, and rules. 

            (ii)                  Customer authorizes Seso and its authorized third party service providers to use Customer Data, including Employment Information, and any other data required for the SaaS Services.

           (iii)                  To the extent Customer provides its employees’ or contractors’ bank account information to Seso or its authorized service providers, Customer hereby represents and warrants that it has obtained consents and authorizations from such individual as required by law to allow Seso or its service provider to credit and, as legally necessary to correct an error or overpayment, debit funds from those employees’ or contractors’ accounts. Customer hereby agrees to provide proof of such consent to Seso upon request. 

           (iv)                  Amounts Due will be held for Customer’s benefit in accounts at financial institutions until such time as those payments are due to Customer’s employees and/or independent contractors (and in the case of Payroll Services, the appropriate taxing agencies), and no interest will be paid to Customers on these amounts. Customer acknowledges that Seso and its service providers have no access to or control over funds held in such accounts.

            (v)                  Customer acknowledges it is the Originator (as defined in the NACHA Rules) of each entry or transaction, and assumes the responsibilities and liabilities of an Originator under the NACHA Rules. Customer will indemnify Seso and its service providers against any claims, damages, liabilities, costs and expenses, including attorney’s fees, which result, directly or indirectly, from a breach of such a warranty made by Seso or its service providers on Customer’s behalf, unless such breach results solely from Seso or its service provider’s (as applicable) own gross negligence or willful misconduct.

(h)            Returned and Failed Disbursements. If Customer or its service provider disburses an amount via Payroll Services that is later returned or invalidated for any reason, Seso will communicate with Customer regarding same. In such event, Customer may either (i) request in writing that Seso makes a second attempt to complete the applicable disbursement, or (ii) complete the applicable disbursement separate and apart from the Payroll Services, in which case the applicable funds will be paid to the Linked Account and Seso shall be relieved of its obligations to provide the Payroll Services with respect to the applicable Customer employee(s). Customer is responsible for any fees related to returned or failed disbursements (including any applicable chargeback fee or dispute fees). 

(i)             Reversals. If Customer requests in writing that a payroll disbursement be reversed via the Payroll Services, then provided that such request is made prior to completion of the disbursement, Seso will use reasonable efforts to reverse the transaction. Resolution and repayment of any payroll disbursements, regardless of any reversal requests, shall be between Customer and applicable employee(s) and the responsibility of Customer.

(j)             Tax Authorization. Customer agrees Seso or Processor shall act as the tax filing agent where required for U.S. federal, state or local deposits, filings and correspondence on Customer’s behalf as it relates to payroll tax filings. Customer authorizes each of Seso and Processor to act as an agent on its behalf with the IRS as well as applicable state and local tax authorities including the submission of tax-related information and Customer Data, the payment of tax liabilities, and correspondence with appropriate taxing authorities. Customer acknowledges that Seso is not acting in a fiduciary capacity on its behalf and that although Seso is authorized as a third party to act on its behalf with certain tax authorities to file payroll tax returns and to make payroll tax payments, Customer is ultimately responsible to the relevant taxing authority for the timely filing of employment tax returns and the timely payment of employment taxes on behalf of Customer’s employees. Seso recommends Customer enroll in the U.S. Treasury Department’s Electronic Federal Tax Payment System (EFTPS) to monitor Seso’s IRS account and to ensure that timely tax payments are being made on Customer’s behalf. Customer may enroll in the EFTPS system online at www.eftps.gov or via phone at 800-555-4477 for an enrollment form. State tax authorities generally offer similar means to verify tax payments and Customer is advised to contact the appropriate state tax authority directly for details. Customer acknowledges that it is responsible for the timely filing of employment tax returns and the timely payment of employment taxes for its employees, notwithstanding Customer’s engagement of Seso to file the returns and make the payments on its behalf.

(k)            Support. During an applicable Subscription Term, Seso will use commercially reasonable efforts to provide support for the applicable Payroll Service as described in the Payroll Service Support Policy. As used herein, the “Payroll Service Support Policy” means the then-current version of Seso’s customer support policy with respect to the applicable Payroll Services. The version currently in effect is available here.

(l)             Additional Payroll Managed Service Terms.

             (i)                  Subject to the terms and conditions of this Section 6 and Customer’s timely and proper performance of its obligations as set forth in this Section 6, without limiting the foregoing in this Section 6, if an Order Form indicates that “Payroll Managed Services” are included in the Services, then the Payroll Services shall also include the following:

(A)  with respect to each Customer employee timesheet properly submitted by Customer to Seso, enter applicable Customer Data contained therein into the SaaS Services;

(B)  prepare such records as are reasonably required to support payroll payments for each such Customer employee; and

(C)  effect appropriate amounts of withholding for taxes and authorized expenditures for each such Customer employee.

            (ii)                  It is Customer’s responsibility and obligation to ensure that Seso has timely and accurate data and authority to process payroll, and engage in tax-related services on behalf of Customer. In addition, Customer is responsible for complying with all applicable laws, regulations and obligations relating to Customer’s use of the Manage Payroll Services, and Seso is not responsible for, and disclaims all liability arising from or relating to Customer’s compliance with any such applicable laws, regulations and obligations. In order to provide such services, Seso relies on the information and instructions provided by Customer. As such, without limiting the foregoing in this Section 6, if an Order Form indicates that “Payroll Managed Services” are included in the Services, Customer shall ensure accurate information and instructions to Seso, including by completing the following:

(A)  designating an account administrator to review and approve the submission of all payroll information to Seso;

(B)  providing accurate, timely, and complete information required by Seso to perform the Payroll Services, which shall require Customer to (without limitation): (x) provide Seso with Customer’s employee roster, including terminated employees if paid in the then-current calendar year, within the timeframe required by Seso (as communicated by Seso to Customer following execution of the relevant Order Form), and thereafter promptly, and in any event within five (5) days, following each update to such roster, in the excel spreadsheet template provided by Seso, including each employee’s demographic data (such as employee ID, SSN, payroll address, backup withholding preference, withholding and deductions, etc.); (y) provide Seso with all valid federal, state and/or local Tax ID numbers in the format required by the corresponding agency; and (z) execute forms and documents necessary to designate Seso to act on Customer’s behalf in tax and payroll related services, including a power of attorney to execute tax disbursements;

(C)  providing all employees timesheets to Seso via the method and to the address set forth in the Order Form by 12:00 pm PST at least three (3) business days prior to the payroll payment date, and by promptly approving or notifying Seso in detail of any corrections to the payroll report(s) provided by Seso. Failure to comply with this deadline or this requirement will result in Customer being charged an expedited processing fee, and Customer expressly acknowledges and agrees that Seso does not guarantee on time deliverables of payroll checks or direct deposits if Customer submits late timesheets or fails to timely approve payroll report(s) provided by Seso; and 

(D)  promptly notifying Seso of third-party notices on behalf of Client and Client employees, such as Internal Revenue Service (“IRS”) penalty notices or garnishment notices, which could affect Seso’s ability to effectively administer the Payroll Services.

(E)  Prior to Customer’s initial payroll processing date, Customer must provide and approve the completed and executed documents Seso requires for providing the Payroll Services, including all implementation documents and properly formatted payroll data. Seso shall provide the Payroll Services in reliance on the accuracy of the information provided by Customer. Failure to provide complete or accurate information may adversely impact Seso’s ability to carry out the Payroll Services. Seso reserves the right to charge additional reasonable fees in the event that Customer fails to provide timely, and properly formatted data as reasonably requested by Seso to carry out the Payroll Services.

           (iii)                  Customer represents and warrants that an account administrator shall review and approve the submission of all payroll information to Seso, thereby authorizing Seso to create and input entries and to submit payroll runs as required to process payroll runs and payroll related tax transactions. By approving a payroll for processing, Customer acknowledges and agrees that: (i) all payroll information and tax-related information are accurate and may be submitted by Seso without further review or approval by Customer; (ii) any instructions provided to Seso by Customer (including but not limited to payroll information and client data required for payroll run and or tax transaction) are deemed to authorize Seso to execute such payroll run or tax transaction in accordance with such instructions and that Seso in its sole discretion reserves the right to refuse to act upon such instructions. After a payroll has been approved by Customer’s account administrator and received by Seso for the purposes of submitting Customer’s payroll, Customer may not be able to cancel or amend such amount and Customer understands that by approving a payroll for processing, while Seso shall use reasonable efforts to act on any cancellation or amendment request, Seso shall have no liability to Customer for: (x) the rejection of any payroll for processing as well as any resulting penalties, interest, or any claims arising directly or indirectly therefrom; or and (y) any under or overpayments to Customer employees as a result of Seso having processed the approved payroll action. In performing the Payroll Services, Seso shall rely solely on the information provided by Customer and as reviewed and approved by Customer's account administrator. Seso is not responsible for any errors resulting from such reliance. In the event Customer fails to carry out its obligations in whole or in part in a manner that materially interferes with Seso’s ability to carry out its obligations, Seso reserves the right to terminate the Payroll Services in its sole discretion.

7.              CONFIDENTIALITY.

(a)            Confidential Information. “Confidential Information” means any and all non-public technical and non-technical information disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) in any form or medium, whether oral, written, graphical or electronic, pursuant to this Agreement, that is marked confidential and proprietary, or that the Disclosing Party identifies as confidential and proprietary, or that by the nature of the circumstances surrounding the disclosure or receipt ought to be treated as confidential and proprietary information. Confidential Information of Seso shall include, without limitation, the Services and the Documentation. Confidential Information of Customer shall include, without limitation, Customer Data, provided that nothing in this Section shall limit the rights and licenses granted to Seso under this Agreement. Confidential Information also includes all summaries and abstracts of Confidential Information.

(b)            Non-Disclosure. Each Party acknowledges that in the course of the performance of this Agreement, it may obtain the Confidential Information of the other Party. Subject to Section 7(c), Section 8(d) and Section 8(g), the Receiving Party shall, at all times, both during the Subscription Term and thereafter, keep in confidence and trust all of the Disclosing Party’s Confidential Information received by it, and the Receiving Party shall not use the Confidential Information of the Disclosing Party other than as necessary to fulfill the Receiving Party’s obligations or to exercise the Receiving Party’s rights under this Agreement. Each Party agrees to secure and protect the other Party’s Confidential Information with the same degree of care and in a manner consistent with the maintenance of such Party’s own Confidential Information (but in no event less than reasonable care), and to take appropriate action by instruction or agreement with its employees or other agents who are permitted access to the other Party’s Confidential Information to satisfy its obligations under this Section. Subject to Section 7(c), the Receiving Party shall not disclose Confidential Information of the Disclosing Party to any person or entity other than disclosing to its officers, employees and agents who need access to such Confidential Information in order to effect the intent of this Agreement and who are subject to confidentiality obligations at least as stringent as the obligations set forth in this Agreement.

(c)            Exceptions to Confidential Information. The obligations set forth in Section 7(b) shall not apply to information which: (a) was known by the Receiving Party prior to receipt from the Disclosing Party either itself or through receipt directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) was developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (c) becomes publicly known or otherwise ceases to be secret or confidential, except as a result of a breach of this Agreement or any obligation of confidentiality by the Receiving Party. Nothing in this Agreement shall prevent the Receiving Party from disclosing Confidential Information to the extent the Receiving Party is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, the Receiving Party shall (x) assert the confidential nature of the Confidential Information to the agency; (y) immediately notify the Disclosing Party in writing of the agency’s order or request to disclose; and (z) cooperate fully with the Disclosing Party in protecting against any such disclosure and in obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.

(d)            Injunctive Relief. The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Receiving Party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.

8.              PROPRIETARY RIGHTS.

(a)            SaaS Services. As between Seso and Customer, all right, title and interest in the SaaS Services and any other Seso materials furnished or made available hereunder, and all modifications and enhancements thereof, and Feedback (as defined in Section 8(b)), including all copyright rights, patent rights and other intellectual property rights in each of the foregoing, belong to and are retained solely by Seso or Seso’s licensors and providers, as applicable. Other than as expressly set forth in this Agreement, no license or other intellectual property rights of any kind are granted to Customer. 

(b)            Feedback. Customer hereby does and will irrevocably assign to Seso all evaluations, ideas, feedback and suggestions made by Customer to Seso regarding the Services (collectively, “Feedback”) and all intellectual property rights in the Feedback.

(c)            Seso Developments. All inventions, works of authorship and developments conceived, created, written, or generated by or on behalf of Seso, whether solely or jointly, and all intellectual property rights therein, shall remain the sole and exclusive property of Seso.

(d)            Data. Customer hereby grants Seso a non-exclusive, non-sublicensable (except as set forth in the following sentence), irrevocable, worldwide and royalty-free license, under the applicable intellectual property rights, to store, process and use Customer Data, including any personal information, for the purposes of providing and improving the Services, Technical Services and Ancillary Services. Seso may sublicense the foregoing rights to any third party that Seso engages to provide any aspect of the Services and Technical Services. Seso may, unless prohibited by applicable law, de-identify and/or anonymize Customer Data and any other data and information relating to Customer’s use of the Services (with the resulting de-identified or anonymized data and information being referred to herein as “De-identified Data”) and aggregate such De-identified Data, including without limitation aggregation with other information received by Seso from its other customers and from other data sources (collectively, “Aggregated Data”) for the purpose of providing the Services and enhancing the features, functions, and performance of the Services. All De-identified Data and Aggregated Data shall be owned solely and exclusively by Seso. Customer further acknowledges and agrees that De-identified Data and Aggregated Data cease to be personal information or Customer’s Confidential Information, and Seso may, during and after the Term, use, reproduce, disclose, distribute, sell and otherwise commercialize such De-identified Data and Aggregated Data.

(e)            Data Retention. Seso will only retain Customer Data for as long as Services are provided to Customer in accordance with this Agreement. Following expiration or termination of the Agreement, Seso will delete all Customer Data in Seso's possession as provided in the Agreement except to the extent Seso is required by applicable law to retain some or all of the Customer Data (in which case Seso will implement reasonable measures to prevent the Customer Data from any further processing).

(f)             Data Destruction. Seso will destroy or purge Customer Data in a manner consistent with state policy and federal regulations for destruction of private or confidential data and in such a way so that the Customer Data is unusable and irrecoverable. 

(g)            Backups. As a part of the SaaS Services, Seso will maintain under this Agreement consistent, regular and validated backups offsite of the Customer Data. Backups occur and will be maintained pursuant to our internal backup policies. Upon written request, Seso will make available to Customer a copy of Seso's current backup policies and procedures.

(h)            Data Processing Agreement. The Parties will comply with their respective obligations as set forth in the U.S. Privacy Laws Data Processing Addendum available here and incorporated herein by reference.

(i)             Information Security. Each Party will maintain, for the Term, commercially reasonable information security measures designed to ensure the confidentiality, availability, and integrity of Customer Data in its possession or control.

(j)             Contacting Individual Workers. Customer acknowledges and agrees that Seso may use Customer Data provided by or on behalf of Customer to contact and work with individual Workers whose contact information is submitted to the SaaS Services or is otherwise disclosed to Seso. Subject to Section 6, Seso will not contact Workers unless either (i) related to Customer’s Visa process or (ii) such Worker has accessed Seso’s SaaS Services on his or her own.

(k)            Third Party Personal Data. Customer represents, warrants, and covenants that it has provided and will provide all notices and disclosures and obtained and will obtain all rights, consents, and permissions necessary to provide Customer Data to Seso and for Seso to process Customer Data as contemplated by this Agreement, including to provide the Payroll Services. If Customer provides personal information or personal data of any third party to Seso, Customer represents, warrants and covenants that the third party has not communicated to the Customer that they wish to opt out of receiving communication from Customer or Seso.

9.              FEES AND PAYMENT.

(a)            Fees. Customer agrees to pay all fees for Services and Technical Services that are specified in an Order Form (“Service Fees”) and all expenses specified or otherwise described in an Order Form (“Expenses”) using one of the payment methods Seso supports. Except as otherwise specified in an Order Form, (a) all Service Fees and Expenses are stated and payable in United States dollars and (b) payment obligations are non-cancelable and Service Fees and Expenses paid are non-refundable. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding. Notwithstanding Section 14(k), Customer hereby agrees and acknowledges that Seso may add certain pass-through fees and expenses to the Order Form, and modify pass-through fees and expenses set forth in an Order Form, from time to time with an effective date of no less than fifteen (15) days after such updates are communicated in writing to Customer by Seso.

(b)            Invoices and Payment. Except as otherwise specified in this Agreement or in an Order Form, all Service Fees will be invoiced in advance and all Expenses are invoiced in arrears. Except as otherwise set forth in an Order Form, Customer agrees to pay all invoiced amounts within 30 calendar days of the invoice date.

(c)            Outstanding Balance; Late Payment. Without limiting our rights in this Agreement, you acknowledge that Seso is not required to provide any new Services set forth in an Order Form until all outstanding balances due and owing for existing Services are paid in full. 

(d)            Overdue Charges. If Seso does not receive any Service Fees or Expenses by the due date, then at Seso’s discretion, such invoiced amounts may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.

(e)            Promotional Rates and Discounts. Prices specified in an Order Form may include a promotional rate, discount, sale, or special offer, which may be temporary and may expire (i) per the terms of the offer, or (ii) upon the commencement of a Renewal Term. The expiration of the discount or promotional pricing may expire without additional notice to Customer, unless specified in an Order Form or as required by applicable Law. Seso reserves the right to discontinue or modify any promotion, discount, sale, or special offer in our sole discretion.

(f)             Pricing Updates. Seso reserves the right to modify and adjust the prices for our Services and Software at any time. Such price changes may be implemented without prior notice. By continuing to use Seso's Services and Software after a price change, Customer acknowledges and agrees to the revised pricing. Notwithstanding the above, any prices agreed upon within a specific Order Form will be honored for the duration specified in that Order Form. However, any subsequent or new Order Forms issued by Seso may reflect the updated and potentially higher prices. It is Customer's responsibility to review and agree to the pricing terms outlined in each Order Form before proceeding with the purchase of Seso's Services and Software.

(g)            Taxes. “Taxes” means all taxes, levies, imposts, duties, fines or similar governmental assessments imposed by any jurisdiction, country or any subdivision or authority there of including, but not limited to federal, state or local sales, use, property, excise, service, transaction, privilege, occupation, gross receipts or similar taxes, in any way connected with this Agreement or any instrument, or agreement required hereunder, and all interest, penalties or similar liabilities with respect thereto, except such taxes imposed on or measured by a Party’s net income. Fees and charges imposed under this Agreement do not include Taxes except as otherwise provided herein. Customer shall be responsible for all of such Taxes. If, however, Seso has the legal obligation to pay Taxes and is required or permitted to collect such Taxes for which Customer is responsible under this Section 9(g), Customer shall promptly pay the Taxes invoiced by Seso unless Customer has furnished Seso with valid tax exemption documentation regarding such Taxes. Customer shall comply with all applicable tax laws and regulations.

10.           REPRESENTATIONS AND WARRANTIES; DISCLAIMER.

(a)            Mutual Representations and Warranties. Each Party represents, warrants and covenants that: (a) it has the full power and authority to enter into this Agreement and to perform its obligations here under, without the need for any consents, approvals or immunities not yet obtained; and (b) its acceptance of and performance under this Agreement shall not breach any oral or written agreement with any third party or any obligation owed by it to any third party to keep any information or materials in confidence or in trust.

(b)            Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 10, THE SERVICES AND TECHNICAL SERVICES ARE PROVIDED ON AN AS-IS BASIS. CUSTOMER’S USE OF THE SERVICES AND TECHNICAL SERVICES IS AT ITS OWN RISK. SESO DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS, STATUTORY AND IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON INFRINGEMENT AND TITLE, QUALITY, SUITABILITY, OPERABILITY, CONDITION, SYSTEM INTEGRATION, NON-INTERFERENCE, WORKMANSHIP, TRUTH, ACCURACY (OF DATA OR ANY OTHER INFORMATION OR CONTENT), ABSENCE OF DEFECTS, WHETHER LATENT OR PATENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE EXPRESS WARRANTIES MADE BY SESO IN SECTION 10 ARE FOR THE BENEFIT OF THE CUSTOMER ONLY AND NOT FOR THE BENEFIT OF ANY THIRD PARTY. ANY SOFTWARE PROVIDED THROUGH THE SAAS SERVICES IS LICENSED AND NOT SOLD.

NO AGENT OF SESO IS AUTHORIZED TO ALTER OR EXPAND THE WARRANTIES OF SESO AS SET FORTH HEREIN. SESO DOES NOT WARRANT THAT: (A) THE USE OF THE SERVICES OR TECHNICAL SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE SERVICES OR TECHNICAL SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY INFORMATION OR OTHER MATERIAL OBTAINED BY CUSTOMER THROUGH THE SERVICES OR TECHNICAL SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (E) THE SERVICES OR TECHNICAL SERVICES WILL BE ERROR-FREE OR THAT ERRORS OR DEFECTS IN THE SERVICES WILL BE CORRECTED; OR (F) THE SERVER(S) THAT MAKE THE SERVICES OR TECHNICAL SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES AND TECHNICAL SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. SESO IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.

11.           INDEMNIFICATION.

(a)            Seso Indemnity.

             (i)                  General. During Subscription Term, Seso, at its expense, shall defend Customer and its officers, directors and employees (the “Customer Indemnified Parties”) from and against all actions, proceedings, claims and demands by a third party alleging that the SaaS Services infringes any copyright or misappropriates any trade secret and shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) paid to the third party bringing any such a claim. Seso’s obligations under this Section are conditioned upon (i) Seso being promptly notified in writing of any claim under this Section, (ii) Seso having the sole and exclusive right to control the defense and settlement of the claim, and (iii) Customer providing all reasonable assistance (at Seso’s expense and reasonable request) in the defense of such claim. In no event shall Customer settle any claim without Seso’s prior written approval. Customer may, at its own expense, engage separate counsel to advise Customer regarding such a claim and to participate in the defense of the claim, subject to Seso’s right to control the defense and settlement.

            (ii)                  Mitigation. If any claim which Seso is obligated to defend has occurred, or in Seso’s determination is likely to occur, Seso may, in its sole discretion and at its option and expense (i) obtain for Customer the right to use the SaaS Services, (ii) substitute a functionality equivalent, non-infringing replacement for such the SaaS Services, (iii) modify SaaS Services to make it non-infringing and functionally equivalent, or (iv) terminate this Agreement and refund to Customer on a pro-rated basis any pre-paid and unused fees for the SaaS Services.

           (iii)                  Exclusions. Notwithstanding anything to the contrary in this Agreement, the foregoing obligations shall not apply with respect to a claim of infringement if such claim arises out of (i) Customer’s use of infringing Customer Data, (ii) use of the SaaS Services in combination with any software, hardware, network or system not supplied by Seso where the alleged infringement relates to such combination, (iii) any modification or alteration of the SaaS Services other than by Seso, (iv) Customer’s continued use of the SaaS Services after Seso notifies Customer to discontinue use because of an infringement claim, or (v) Customer’s violation of applicable law.

           (iv)                  Sole Remedy. THE FOREGOING STATES THE ENTIRE LIABILITY OF SESO WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS BY THE SAAS SERVICES OR OTHERWISE, AND CUSTOMER HEREBY EXPRESSLY WAIVES ANY OTHER LIABILITIES OR OBLIGATIONS OF SESO WITH RESPECT THERETO.

(b)            Customer Indemnity. Customer agrees to indemnify, defend, save, and hold harmless Seso, and each of its affiliates, parents, officers, directors, agents, contractors, subcontractors, licensees and employees (“Seso Indemnified Parties”) and each of them, against and from any and all third party allegations, demands, claims, liabilities, losses, damages, fines, penalties or costs of whatever nature (including reasonable attorneys’ fees) (hereafter "Third-Party Claims") which arise out of or relate to: (a) Seso’s reasonable performance of the Services and/or any of its contractual obligations under this Agreement; (b) your use of Seso’s website or any of the Services being provided by Seso; (c) any actual or alleged violation or breach by Customer (including any of Customer's employees, agents, contractors, or representatives) of any of the terms and conditions of this Agreement; (d) Customer's violation of any law, rule or regulation under federal, state, or local law or any legal right of a third-party; (e) any acts or omissions by Customer (including any of Customer's employees and contractors) resulting in a Third-Party Claim being asserted; (f) a claim or threat that the Customer Data (and the exercise by Seso of the rights granted herein with respect there to) infringes, misappropriates or violates any third party’s intellectual property rights or other rights; (g) Customer’s use or alleged use of the Services or Technical Services other than as permitted under this Agreement; (h) any errors or omissions in the Customer Data as provided to Seso or the SaaS Services, including without limitation, payroll information which Customer has not corrected or has not requested Seso to correct in an appropriate and timely manner; or (i) arising from the occurrence of any of the exclusions set forth in Section 11(a)(iii). Customer shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) paid to the third party bringing any such Third-Party Claim. Customer’s obligations under this Section 11(b) are conditioned upon (x) Customer being promptly notified in writing of any claim under this Section 11(b), (y) Customer having the sole and exclusive right to control the defense and settlement of the claim, and (z) Seso providing all reasonable assistance (at Customer’s expense and reasonable request) in the defense of such claim. In no event shall Seso settle any claim without Customer’s prior written approval. Seso may, at its own expense, engage separate counsel to advise Seso regarding a Third-Party Claim and to participate in the defense of the claim, subject to Customer’s right to control the defense and settlement. The provisions of this section shall not be construed to eliminate or reduce any other indemnification or right which any indemnitee has by law. The indemnities contained herein shall survive the termination of this contract for any reason whatsoever.

12.           LIMITATION OF LIABILITY.

(a)            No Consequential Damages. NEITHER SESO NOR ITS LICENSORS OR SESOS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES OR TECHNICAL SERVICES, EVEN IF SESO OR ITS LICENSORS OR SESOS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF THE LICENSING, PROVISION OR USE OF THE SERVICES OR THE RESULTS THEREOF. SESO WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.

(b)            Limits on Liability. NEITHER SESO NOR ITS LICENSORS OR SESOS SHALL BE LIABLE FOR CUMULATIVE, AGGREGATE DAMAGES GREATER THAN AN AMOUNT EQUAL TO THE AMOUNTS PAID BY CUSTOMER TO SESO UNDER THIS AGREEMENT FOR THE SERVICES GIVING RISE TO THE CLAIM DURING THE PERIOD OF 12 MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED.

(c)            Waiver of Subrogation. IF CUSTOMER HIRES SESO TO PERFORM LOGISTICS SERVICES, CUSTOMER HEREBY GRANTS TO SESO A WAIVER OF ANY RIGHT TO SUBROGATION WHICH ANY INSURER OF CUSTOMER MAY ACQUIRE AGAINST SESO BY VIRTUE OF THE PAYMENT OF ANY LOSS UNDER SUCH INSURANCE. CUSTOMER AGREES TO OBTAIN ANY ENDORSEMENT THAT MAY BE NECESSARY TO AFFECT THIS WAIVER OF SUBROGATION, BUT THIS PROVISION APPLIES REGARDLESS OF WHETHER OR NOT SESO HAS RECEIVED A WAIVER OF SUBROGATION ENDORSEMENT FROM THE INSURER

(d)            Essential Purpose. CUSTOMER ACKNOWLEDGES THAT THE TERMS IN THIS SECTION 12 SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE.

13.           TERM AND TERMINATION.

(a)            Term. The term of this Agreement commences on the Effective Date and continues until all Order Forms have expired or have been terminated as allowed under this Agreement. Customer’s Subscription Term to Services commences on the date set forth in the applicable Order Form and continues for the Subscription Term specified in such Order Form unless this Agreement or such Order Form is terminated earlier in accordance with the terms of this Agreement (the “Initial Term”). Unless otherwise set forth in an Order Form, each Subscription Term shall automatically renew for additional successive terms equal to the Initial Term (each, a “Renewal Term” and collectively with the Initial Term, the “Term”) unless at least 60 days before the end of the Initial Term or then-current Renewal Term, as applicable, either Party provides written notice to the other Party of such Party’s intent to not renew the Subscription Term. Seso must notify Customer about any changes to the Service Fees and Expenses for the Services specified on the Order Form at least 90 days prior to the end of the Initial Term or then-current Renewal Term, as applicable.

(b)            Termination for Cause. A Party may terminate this Agreement (and all Order Forms) or a specific Order Form upon written notice to the other Party in the event the other Party commits a material breach of this Agreement and does not remedy such breach within 30 days after receipt of written notice of such breach.

(c)            Effects of Termination. Upon any expiration or termination of an Order Form, (a) Customer’s use of and access to the Services and Technical Services under that Order Form shall cease, and (b) all fees and other amounts owed to Seso under that under that Order Form shall be immediately due and payable by Customer. Any termination of this Agreement automatically terminates all Order Forms. During the Term and prior to the effective date of any expiration or earlier termination of this Agreement, Customer may export any Customer Data that Customer or any User has entered into to the Services. UPON THE EFFECTIVE DATE OF ANY EXPIRATION OR TERMINATION OF THIS AGREEMENT, SESO MAY DELETE ANY DATA, INCLUDING, WITHOUT LIMITATION, CUSTOMER DATA, THAT CUSTOMER OR ANY USER HAS ENTERED INTO THE SAAS SERVICES. Customer is solely responsible for exporting such Customer Data from the SaaS Services prior to expiration or termination of the Term. Customer acknowledges and understands that if Customer or Seso terminates Payroll Services pursuant to this Section 13 or via the non-renewal of such services, then as of the time such termination becomes effective, Seso shall have no obligation to make further payroll or tax filings or actions on Customer’s behalf and reserves the right to apply additional fees for any of the applicable Services detailed herein for the provision of such services, which provisions shall be in Seso’s sole discretion.

(d)            Survival. The termination or expiration of this Agreement for any reason shall not affect a Party’s rights or obligations that expressly or by their nature continue and survive (including, without limitation, the payment terms and the provisions concerning ownership, confidentiality, limitation of liability, indemnity and the warranty disclaimers).

14.           MISCELLANEOUS.

(a)            General Changes. We may make modifications, deletions, and additions to this Agreement (“Changes”) from time to time in accordance with this Section 14(a). Changes to this Software As a Service Agreement will be posted here, which Customer should regularly check for the most recent version and also save the most up to date version in Customer's files. When Changes are made, Seso will indicate the effective date of the Changes at the top of the Terms of Service located here. Changes to this Agreement do not create a renewed opportunity to opt out of arbitration (if applicable). If Customer continues to use the Services after the effective date of the Changes, then Customer agrees to the revised terms and conditions. In some instances, Seso may notify you of a Change and also may request express confirmation of Customer's consent to a Change. If a Change requires a specific notice pursuant to applicable Law, Seso will provide Customer with such notice in the manner prescribed by applicable Law, together with any required notification of your rights.

(b)            Other Changes. Customer agrees that Seso may modify, delete, and make additions to Seso's guides, statements, policies, and notices, with or without notice to Customer, and for similar guides, statements, policies, and notices applicable to Customer's use of the Services by posting an updated version on the applicable webpage.

(c)            Change Notifications. It is Customer's responsibility to keep Customer's contact information up to date for any notices that Seso may send to Customer from time to time and to regularly review this Agreement.

(d)            Privacy Policy. Customer consents to and agrees to Seso's Privacy Policy and Customer is on notice of and acknowledges that Seso’s collection, sharing, and processing (which may include organizing, structuring, storing, using, or disclosing) of Customer's personal data will be subject to Seso's Privacy Policy.

(e)            Subcontractors. Seso may utilize independent contractors and third party service providers to perform all or part of the Services. Seso will remain solely responsible for the performance of all of the Services that are subcontracted.

(f)             Notices. Seso may give notice to Customer by means of a general notice through the SaaS Services interface, electronic mail to Customer’s e-mail address on record with Seso, or by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service to Customer’s address on record with Seso. Customer may give notice to Seso by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service addressed to Seso at 548 Market St, PMB 40370, San Francisco, CA 94104, Attention: Seso Legal. Notice shall be deemed to have been given upon receipt or, if earlier, two business days after mailing, as applicable. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.

(g)            Governing Law. This Agreement and the rights and obligations of the Parties to and under this Agreement shall be governed by and construed under the laws of the United States and the State of California as applied to agreements entered into and to be performed in such State without giving effect to conflicts of laws rules or principles. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. The Parties further agree to waive and opt-out of any application of the Uniform Computer Information Transactions Act (“UCITA”), or any version thereof, adopted by any state of the United States in any form. 

(h)            Arbitration.

                      (i)         Except as provided in clause (ii) below, any disputes, claims and causes of action arising out of or in connection with this Agreement, including but not limited to any question regarding its existence, interpretation, validity, performance or termination, or any dispute between the Parties arising from the Parties’ relationship created by this Agreement, shall be settled by arbitration to be held in San Francisco County, California, in accordance with the rules then in effect of the American Arbitration Association. Three arbitrators shall be appointed in accordance with such rules.

                     (ii)         The arbitrator(s) shall apply the laws of the State of California to the merits of any such dispute, claim, or cause of action (whether in contract, tort, or statute) in accordance with Section 14(g). The arbitrator(s) shall have the power to decide all questions of arbitrability. The arbitrator(s) shall have the authority to grant any equitable and legal remedies that would be available in any judicial proceeding. The arbitration shall be confidential. At the request of either Party, the arbitrator(s) will enter an appropriate protective order to maintain the confidentiality of information produced or exchanged in the course of the arbitration proceedings. The award must be in writing and state the reasons on which it is based. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Notwithstanding anything to the contrary in this Section 14(h), either Party may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief without breach of this Section 14(h) and without any abridgment of the powers of the arbitrator(s) in the event of acts or breaches of this Agreement that such Party believes may cause irreparable harm or with respect to which such Party believes monetary damages would not provide adequate compensation.

                    (iii)         EACH OF THE PARTIES IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE) BETWEEN THE PARTIES ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE TRANSACTION, OR THE ACTIONS OF ANY PARTY HERETO IN NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT OF THIS AGREEMENT, OR ANY OTHER RELEVANT MATTER.

                    (iv)         The arbitrator(s) may award to the prevailing Party, if any, as determined by the arbitrator(s), its reasonable costs and fees incurred in connection with any arbitration or related judicial proceeding hereunder. Cost and fees awarded may include, without limitation, administrative fees, arbitrator fees, attorneys’ fees, expert fees, witness fees, court costs, travel expenses, and out-of-pocket expenses (including, without limitation, such expenses as copying, telephone, facsimile, postage, and courier fees).

(i)             Publicity. Customer grants Seso permission and the right to (i) identify you as a customer and to use your logo across Seso marketing materials (e.g., the Seso Website, emails, presentations, brochures), and (ii) develop content around your experience as a Seso customer (e.g., a written case study or video case study). Any content created under the foregoing clause (ii) of this Section 14(i) will be created in cooperation with you and used only upon your written approval. Seso will use any trademarks provided by you pursuant to this Section 14(i) in accordance with any reasonable brand guidelines that you provide to us in writing prior to our use.

(j)             Export. The SaaS Services utilizes software and technology that may be subject to United States and foreign export controls. Customer acknowledges and agrees that the SaaS Services shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the SaaS Services, Customer represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The SaaS Services may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. Customer agrees to comply strictly with all applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. Seso and its licensors make no representation that the SaaS Services are appropriate or available for use in other locations.

(k)            Amendment; Waiver. This Agreement may not be amended, except by a writing signed by both parties. No term or provision of this Agreement shall be considered waived by either Party, and no breach excused by either Party, unless such waiver or consent is in writing signed on behalf of the Party against whom the waiver is asserted. No consent by either Party to, or waiver of, a breach by either Party, whether express or implied, shall constitute consent to, waiver of, or excuse of any other, different, or subsequent breach by either Party.

(l)             Severability. If any provision of this Agreement is held invalid or unenforceable for any reason, the remainder of the provision shall be amended to achieve as closely as possible the economic effect of the original term and all other provisions shall continue in full force and effect.

(m)          Assignment. Customer may not assign its rights or delegate its obligations under this Agreement to any third party, whether voluntarily or by operation of law or otherwise (including in connection with any merger or acquisition involving Customer), without the prior written consent of Seso, such consent not to be unreasonably withheld, and subject to Customer paying any applicable transfer or set-up fees. Any purported assignment or transfer in violation of this Section 14(m) shall be void. Subject to the foregoing restrictions, this Agreement will bind and benefit the Parties and their successors and permitted assigns.

(n)            Relationship of the Parties. Seso is an independent contractor to Customer. There is no relationship of agency, partnership, joint venture, employment, or franchise between the Parties. Neither Party has the authority to bind the other or to incur any obligation on its behalf.

(o)            Attorneys’ Fees. In any action to enforce this Agreement, the prevailing Party shall be awarded all court costs and reasonable attorneys’ fees incurred, including such costs and attorneys’ fees incurred in enforcing and collecting any judgment.

(p)            Force Majeure. Except for Customer’s payment obligations, neither Party shall be liable for any failure or delay in performance under this Agreement due to fire, explosion, earthquake, storm, flood or other weather; unavailability of necessary utilities or raw materials; Internet service provider failures or delays, or denial of service attacks; war, civil unrest, acts of terror, insurrection, riot, disease or viral outbreak or epidemic or pandemic, acts of God or the public enemy; epidemics or pandemics; strikes or other labor problems; any law, act, order, proclamation, decree, regulation, ordinance, or instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such Party of this Agreement); or any other event beyond the reasonable control of the Party whose performance is to be excused. 

(q)            No Professional or Legal Advice. Customer’s access, use, and receipt of the Services is entirely at Customer own risk. Customer acknowledges that the Services are meant for informational purposes only and are not intended to provide and should not be construed as providing any legal, regulatory, tax, financial, accounting, employment, or other professional advice. Customer is solely responsible for ensuring Customer’s compliance with applicable law and regulation, and nothing contained within the Services (including, without limitation, any communications from our customer support team regarding such Services) should be construed as, or used as a substitute for, the advice of competent legal or applicable professional counsel. Seso does not guarantee or warrant any results or outcome with respect to the Services.

(r)             Entire Agreement. This Agreement (including all Order Form(s), Seso’s Privacy Policy, Seso DPA, and any supplemental policies or terms and conditions of service referenced herein) constitute the entire agreement between the Parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral. If there’s a direct conflict between provisions in this Agreement, the conflict will be resolved by giving precedence to the provision as it appears in the highest-ranked document in the following order: (a) the relevant Order Form; (b) body of this Agreement; and (c) the H-2A Agent Agreement entered into between Customer and Seso if applicable.