Master Services Agreement

Last Updated: March 14, 2025

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This Master Services Agreement, including all schedules and policies attached or referenced herein and any Order entered into hereunder, forms a binding agreement (“Agreement”) by and between Tapcheck Inc., a Delaware corporation and its Affiliates (collectively, “Tapcheck”, “we” or “us”) and the person or entity agreeing hereto (“Company”, “you” or “your”). This Agreement is deemed accepted and becomes effective upon the date of first access to or use of the Services or the date specified in a mutually-accepted Order between the parties (such date, the “Effective Date”). Tapcheck and Company are each a “Party” and collectively, the “Parties.” In consideration of the mutual promises herein, the Parties agree as follows:

1. Definitions.
   1. “Affiliate” means (i) an entity directly or indirectly Controlled by, Controlling, or under common Control with a Party, and (ii) any client, customer, franchisee, joint venturer, partner, or other third party that Company instructs Tapcheck to provide the Services to in connection with this Agreement. An entity has “Control” of another entity when it owns more than 50% of the equity or voting interests, or has primary operational or management responsibility. Company’s Affiliates (together with their ACH information, as applicable) may be listed in the applicable Order.
   2. “Business Day” means any day other than a Saturday, Sunday or legal holiday in the State of Delaware.
   3. “Company Data” means any information made available to Tapcheck by the Company or a Service Provider (as defined below) through the Services or otherwise provided by Company or a Service Provider to Tapcheck in connection with this Agreement.
   4. “Confidential Information” means all non-public, proprietary or trade secret data, information and materials, in any format, that the disclosing Party, its Affiliates or agents (each, a “Disclosing Party”) provides or makes available to the receiving Party, its Affiliates or agents (each, a “Receiving Party”) and that the Disclosing Party has designated as confidential or that should reasonably have been understood as confidential either because of the circumstances of disclosure or the nature of the information itself and that (a) relates to Disclosing Party, its services, products, trade secrets, developments, know-how or personnel; and (b) is received by Receiving Party from Disclosing Party during the Term.
   5. “Data Protection Laws” means all data protection and privacy laws, rules and regulations applicable to a Party and binding on that Party in the performance of its obligations under this Agreement.
   6. “Documentation” means all written materials provided or made available by Tapcheck describing the functionality, technical requirements, or use of the Services.
   7. “Integration Partner” means a provider of technology services that has signed an agreement with Tapcheck to embed access to the Services in such company’s own technology for the benefit of Company and Users.
   8. “Intellectual Property Rights” means all patents, copyrights, trade secrets, trademarks and service marks, trade dress, trade names, derivative works, goodwill and marketing rights related thereto, works of authorship, inventions, discoveries, improvements, methods, processes, formulas, designs, techniques, know how, all other intellectual property or proprietary rights (whether or not registered) and similar forms of protection worldwide, and all applications for and registrations in such rights.
   9. “Marketing Materials” means marketing materials provided by Tapcheck in written, online, or other format to market and promote the Services to Users.
   10. “Order” means a written order placed by Company (or its Affiliate, as applicable) with Tapcheck for the Services pursuant to Tapcheck’s then-current Order form, and the associated fees or charges, as agreed by the Parties.
   11. “Personal Data” means any information or data about a User that is personal data or personally identifiable information (as defined under the applicable Data Protection Laws).
   12. “Receivable Wages” means net wages that have accrued, but have not yet been paid, for work that has been performed by a User.
   13. “Services” means the services, including without limitation the software-as-a-service wage management and payment solution, and related implementation and maintenance services, provided by Tapcheck as indicated in the applicable Order, and including without limitation, the Tapcheck Technology.
   14. “Tapcheck API” means any application program interface provided by Tapcheck in connection with the Services.
   15. “Tapcheck Marks” means Tapcheck’s trademarks, service marks, logos, trade names, and other branding features.
   16. “Tapcheck Technology” means the proprietary technology owned or licensed by Tapcheck, including Services, Tapcheck API and related designs and specifications, other software, development tools, technologies, databases, user interface and hardware designs, and any Intellectual Property Rights embodied therein or related thereto, worldwide and whenever developed, as well as any updates, upgrades, derivatives, improvements, enhancements or extensions conceived, developed or reduced to practice.
   17. “User” means a Company employee that elects to use the Services and accesses Receivable Wages through Tapcheck’s mobile applications or websites.
2. Grant of License.
   1. License. Subject to the terms and conditions of this Agreement, Tapcheck hereby grants to Company a limited, non-exclusive, non-transferable, non-sublicensable (except as set forth herein) license during the Term (as defined below) to (a) access and use the Services for the sole purpose of providing Users with access to Receivable Wages prior to Company’s regularly scheduled payroll processing, and (b) if applicable, access and use the Tapcheck API for the limited, sole purpose of accessing and using the Services as contemplated herein. The license granted herein also includes the right to make, distribute and use a reasonable number of copies of Documentation and Marketing Materials, in each case solely for Company’s internal business purposes.
   2. Use by and for Affiliates. Unless otherwise provided in the applicable Order, Company’s Affiliates and their respective Users are entitled to use the Services identified in an Order in accordance with this Agreement. Alternatively, such Affiliates may contract directly with Tapcheck for Services by executing an Order governed by the terms and conditions of this Agreement. In any event, Company is responsible for compliance by such Affiliates and all Users with the terms and conditions set forth in this Agreement, unless otherwise specified in an applicable Order.
   3. Trademarks. Tapcheck hereby grants to Company a limited, non-exclusive, non-transferable, non-sublicensable (except as set forth herein) license during the Term to use Tapcheck Marks solely in connection with activities authorized by this Agreement. Company will only use or permit use of the Tapcheck Marks in the form and manner specified by Tapcheck and in accordance with any trademark usage guidelines provided by Tapcheck. The use by Company of the Tapcheck Marks will not create any right, title or interest, in or to the Tapcheck Marks in favor of Company or its Affiliates. All goodwill associated with the use of the Tapcheck Marks will inure to the benefit of Tapcheck.
   4. Changes to Services. Tapcheck may change, modify, update, or discontinue any element of the Tapcheck Technology from time to time without notice. If a change is material, Tapcheck will use commercially reasonable efforts to notify Company thirty (30) days in advance, unless a lesser notice period is required by applicable laws, rules or regulations or in order to address a material security vulnerability. Tapcheck may also make new features or modules for the Services available for an additional fee (each such offering, an “Add-On”). Add-Ons are not required for the proper functioning of the Services and will be made available to Company only upon execution of an additional Order for such Add-On or when implemented by an Integration Partner.
3. Ownership.
   1. Proprietary Rights. Tapcheck will at all times retain all right, title and interest in and to all Intellectual Property Rights in the Tapcheck Technology, all Documentation, any Marketing Materials and Tapcheck Marks. TAPCHECK EXPRESSLY RESERVES ALL RIGHTS IN AND TO THE TAPCHECK TECHNOLOGY, DOCUMENTATION, MARKETING MATERIALS AND TAPCHECK MARKS NOT EXPRESSLY GRANTED HEREUNDER.
   2. Company Data. Company grants to Tapcheck and Tapcheck’s Affiliates, agents, representatives, vendors and subcontractors a non-exclusive, non-transferable (except as set forth herein), worldwide, royalty-free license to use and reproduce Company Data solely for the purposes of providing the Services, providing support and analysis pursuant to this Agreement, and periodically messaging existing and newly-hired employees regarding the availability of the Services, whether via email, text and/or other messaging, subject to all applicable laws and regulations. Subject to the foregoing, as between the parties, Company retains all rights, title, and interest in and to Company Data and the Intellectual Property Rights embodied therein or related thereto. Company is solely responsible for Company Data, including the content, accuracy, and integrity of Company Data and any errors and omissions. Company is solely responsible for any actions that Users take with respect to Company Data. Tapcheck is not responsible for the disclosure of Company Data by Company or Company’s agents (including Users) to any third party. To the extent that a User submits Personal Data through the Services or directly to Tapcheck, this Section 3.2 applies to such Personal Data.
   3. Performance Data. Tapcheck may collect, use, and analyze general information and data in an anonymized, aggregated manner: (a) regarding installation, registration, and use of the Services; and (b) related to performance of the Services, including, but not limited to, response times, load averages, usage statistics, and activity logs (collectively, “Performance Data”). Performance Data is owned by Tapcheck.  Performance Data will not include Personal Data or output specific to Company resulting from use of the Services (“Output”), but it may include aggregated or anonymized information derived from the Output.  Performance Data may be used to contribute to analytical models used by Tapcheck to monitor and improve the Services and to develop additional services and offerings.
   4. Feedback. Company hereby grants Tapcheck a worldwide, perpetual, irrevocable, royalty-free right and license to use any ideas, suggestions, comments, recommendations, enhancement requests or other input regarding the Services provided to Tapcheck by Company, its employees or agents, or Users, in any form or in any way whatsoever and without obligation or restriction of any kind.
4. Restrictions. The Services are licensed for Company’s internal business use, and only in connection with making Receivable Wages available to Users. Except as explicitly permitted in this Agreement, Company will not (and Company will use commercially reasonable efforts to ensure that Users and other third parties do not), directly or indirectly: (a) modify, translate, or create derivative works of or based on any Tapcheck Technology; (b) delete, alter, add to or fail to reproduce in and on any of the Services, Documentation or Marketing Materials any Tapcheck Mark, copyright attribution or other notices; (c) disassemble, decompile, translate, modify, reverse engineer or otherwise attempt to derive source code, object code or the underlying ideas, algorithms, structure or organization of the Tapcheck Technology, or any components thereof or other Tapcheck trade secrets, except to the extent that this provision is expressly prohibited by applicable statutory law; (d) disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Tapcheck Technology; (e) reproduce, license, sell, rent, lease, outsource or use the Tapcheck Technology for timesharing or service bureau purposes or for any purpose other than for the internal benefit of Company; (f) use any Tapcheck Technology or any of Tapcheck’s Confidential Information to create any hardware, software, documentation, service or data that is similar to the Tapcheck Technology; (g) interfere with, disable, damage, impair or disrupt the integrity or performance of the Tapcheck Technology; (h) use the Services in a way that imposes, or may impose, in Tapcheck’s discretion, an unreasonable or disproportionately large load on the Tapcheck Technology; (i) engage in any harassing, intimidating, threatening, abusive or otherwise inappropriate or unlawful conduct involving any Tapcheck customer, user, personnel, vendor, contractor, or other third party; or (j) use the Tapcheck Technology other than in accordance with this Agreement and in compliance with all applicable laws and regulations. Any violation of these restrictions may be deemed by Tapcheck an incurable breach of this Agreement.
5. Responsibilities.
   1. Company Responsibilities. Company undertakes to perform the following obligations (collectively, the “Company Responsibilities”):
      1. Marketing
         1. When the Services are acquired directly from Tapcheck via an Order, Company will coordinate with Tapcheck on a go-to-market launch plan to promote the Services using Company Data to existing and newly-hired employees in a non-disruptive manner, including without limitation, via promotional messages and reminders through email, text and other communication methods, by featuring Tapcheck in information provided to employees about employment-related benefits, and by participating in other applicable promotions as the Parties may agree.
         2. When the Services are acquired through an Integration Partner, Company, Tapcheck and/or the Integration Partner may promote the Services using Company Data to existing and newly-hired employees in a non-disruptive manner, including without limitation, via promotional messages and reminders through email, text and other communication methods, by featuring Tapcheck in information provided to employees about employment-related benefits, and by participating in other applicable promotions.
      2. Company or the Integration Partner will provide Tapcheck, as necessary and required by Tapcheck based on the specific functionality provided by Tapcheck to Company, with sufficient authorization and information regarding Company’s payroll processing and time tracking company or companies, as applicable (each a “Service Provider”), in order for Tapcheck to contact the Service Provider (if necessary) on behalf of Company and receive gross earnings and Receivable Wages data, payroll and other User information, as and to the extent necessary to provide the Services, which can be passed from the Service Provider’s systems to the Tapcheck API at the times and in the manner specified by Tapcheck or as otherwise reasonably permitted by the applicable Service Provider.
      3. Company will ensure that payment information and information regarding a User’s status, including, without limitation, any pay rate changes, any new deductions to gross earnings, changes to a User’s tax exemptions and filing status, and any unpaid leave for family or medical reasons or termination of employment (“User Data”), is at all times current and accurate on all applicable Company systems and may be accessed by Tapcheck through the Tapcheck API or Integration Partner. If there is no API integration or Integration Partner, Company will timely import User Data for each User to Tapcheck’s Company account, but no less frequently than every payroll cycle. Company will ensure that the Service Provider has correctly deducted the Receivable Wages paid by Tapcheck to a User during a payroll cycle from such User’s gross earnings prior to payroll being processed for such period. Failure to comply may result in an overpayment of wages to the User, and Company will be solely liable for any such overpayment.
      4. Company will immediately deactivate the account of any User upon termination of employment with the Company and if such User will receive a paper final paycheck in connection with termination, Tapcheck will report to the Service Provider or Integration Partner any applicable deduction for Receivable Wages paid to such User, in order to apply such deduction to the paper check. Company will be responsible for instructing the Service Provider or Integration Partner to apply the Receivable Wage deduction to the paper check. If Company, Service Provider or Integration Partner fails to deduct any Receivable Wages from such User’s final paycheck, then Company will be held liable to Tapcheck for the payment of such amounts that should have been deducted.
      5. Company will immediately notify Tapcheck or Integration Partner, as applicable, of any manual checks issued to a User that would lower such User’s availability of Receivable Wages for any pay period. Failure to comply in a timely manner may result in an overpayment of wages to the User, and Company will be solely liable for any such overpayment.
      6. Company will make all payroll payments for Users (including off-cycle and termination payments) in accordance with regular payroll timelines (but in any event no less frequently than monthly).
      7. Company is responsible for any devices, equipment, and network or internet connectivity required to access the Services over the Internet. Company consents to the processing and storage of Company Data on hardware owned or controlled by third parties.
      8. If there is a remaining negative balance in a User’s Tapcheck account after payday that is due to inaccuracies in Company Data or a failure by Company to timely comply with any of the Company Responsibilities, then Integration Partner or Company, as applicable, will reimburse Tapcheck within ten (10) days of receiving notice from Tapcheck that it is not able to recoup the amounts owed.
   2. Tapcheck Responsibilities.
      1. Tapcheck will provide updates to the Services as they become commercially available and will use commercially reasonable efforts to correct any identified defects in the Services.
      2. Tapcheck will provide Company with support related to access to and use of the Services by Company and Users. Tapcheck will use commercially reasonable efforts to promptly answer questions communicated to Tapcheck by Company during Business Days. Support inquiries can be submitted anytime via our website at Tapcheck.com, by emailing clientsupport@tapcheck.com, or as otherwise indicated by Tapcheck. Support is also available by phone at 866.697.6016 on Business Days from 8:00 a.m. to 5:00 p.m. Pacific Time, or at such other updated contact information as Tapcheck may provide from time to time.
      3. Upon reasonable request, Tapcheck will conduct a training call/webinar for those employees who manage employment-related benefits, as part of the implementation of the Services.
      4. Tapcheck will, either through the Services or otherwise, provide Company or Integration Partner, as applicable, with information regarding: (i) Users who received Receivable Wages from Tapcheck; (ii) Receivable Wages that have not been reimbursed to Tapcheck from Company or Integration Partner, as applicable; and (iii) the status of Users’ Tapcheck accounts.
      5. Tapcheck will be liable for any overpayment of Receivable Wages to Users, except to the extent that such overpayment is due to inaccurate Company Data or a failure to perform any Company Responsibilities. In the event of any such error, Company will (i) promptly notify the User of the Receivable Wages overpayment; and (ii) use its best efforts to obtain repayment from the User for such amounts, to the extent permissible under applicable law. In addition, Company agrees to reasonably assist Tapcheck, without charge, in Tapcheck’s efforts to obtain repayment from a User of any Receivable Wages overpayment.
      6. If there is a remaining negative balance in a User’s Tapcheck account after termination of such User’s employment, and such negative balance was not due to any inaccuracy in Company Data or a failure to perform any Company Responsibilities, then Tapcheck will be responsible for collecting such outstanding Receivable Wages directly from such terminated User. Company agrees to reasonably assist Tapcheck, without charge, in efforts to obtain repayment from such User.
6. Debit Authorization; User Fees; Subscription Fees.
   1. Debit Authorization.
      1. Direct Relationship with Tapcheck. Where Company has acquired the Services directly from Tapcheck and not through an Integration Partner, an amount equal to the Receivable Wages paid to Users in a payroll cycle will be automatically debited from Company’s account (the “Benefit Account”) on the date that payroll is processed to the employees, as authorized in an Order.
      2. Relationship with Tapcheck Through a Partner. Where Company has acquired the Services through an Integration Partner, an amount equal to the Receivable Wages paid to Users in a payroll cycle will be automatically debited directly from the account of such Integration Partner on the date that payroll is processed to the employees pursuant to the agreement between Company and Integration Partner; provided, however, that if Tapcheck is unable to collect the amount equal to Receivables Wages paid to Users from such Integration Partner for any reason, Company authorizes Tapcheck to acquire Company’s Benefit Account information from such Integration Partner and debit such Benefit Account in the amount of the applicable Receivables Wages.
      3. ACH Authorization. By entering into this Agreement, Company hereby grants to Tapcheck authorization to process automatic credit and debit entries, or to correct inadvertent duplicate and/or erroneous credit/debit information associated with the Benefit Account (i) as specified in an Order, or (ii) as provided to Tapcheck by the applicable Tapcheck Integration Partner. This authorization will remain in full force and effect until Tapcheck has received written notification of its termination, in such time and in such manner as to afford Tapcheck a reasonable opportunity to act on it and all obligations due Tapcheck under this Agreement have been paid in full. If the Benefit Account is closed, Company will notify Tapcheck and this authorization, in any event, will apply to any new account.
      4. Return Fees. In the event that Tapcheck is unable to debit the Benefit Account or any other account that Tapcheck is instructed by Company to debit pursuant to this Agreement, Tapcheck may charge Company a fee of $35 for the processing of such ACH return (each, a “Return Fee”). After any funding issues are resolved as between Company and Tapcheck and Tapcheck has successfully debited the applicable account for the amount equal to the Receivables Wages advanced to Users, Tapcheck will initiate a separate debit transaction to the same account for the amount of any Return Fees due to Tapcheck from Company pursuant to this Section.
      5. Refund Requests. In the event that Company reasonably believes that Tapcheck has incorrectly debited the Benefit Account or any other account that Tapcheck is instructed by Company to debit pursuant to this Agreement in connection with any amounts equal to the Receivables Wages paid to Users, Company shall notify Tapcheck of the amount of such discrepancy and any supporting details related thereto within fifteen (15) days of the paycheck date to which the discrepancy relates. If Company does not timely submit a documented dispute notice per this Section 6.1(e), Company waives all rights to dispute such amounts.
   2. User Fees. Users must agree to the terms of the Tapcheck End User License Agreement as available in the Tapcheck mobile application (the “EULA”), in order to access the Services and receive Receivable Wages from Tapcheck. Tapcheck will charge Users certain fees to access Receivable Wages in the same business day or the next business day, as set forth in the EULA.
   3. Taxes. To the extent applicable, as between the Parties, Company will be responsible for payment of all sales, use, property, value-added, payroll withholding, or other federal, state or local taxes, surcharges and levies arising from or related to the Services, except for taxes based solely on Tapcheck’s net income. If Tapcheck is required to pay any such taxes (except for taxes based solely on Tapcheck’s net income) based on the licenses granted in this Agreement or based on Company’s use of the Services, then such taxes will be billed to and paid by Company.
   4. Late Payments. To the extent applicable, in the event of late payment of a fee, charge or reimbursable sum as required pursuant to this Agreement, Tapcheck may, in its sole discretion and effective upon notice, (a) suspend Services, (b) apply a late payment charge on unpaid amounts equal to the lesser of 1.5% interest per month (18% per annum) or the maximum rate permitted by law, and/or (c) pursue any other remedy available under this Agreement, at law or in equity.
   5. Disputed Payments. To the extent applicable, if Company desires to dispute in good faith an amount due hereunder, Company will, on or before the payment due date, (a) pay to Tapcheck the undisputed portion of such amount and (b) provide to Tapcheck notice of the details of the dispute, together with all supporting documentation. The Parties then will work diligently to promptly resolve the dispute. If Company does not timely submit a documented dispute notice per this Section 6.5, Company waives all rights to dispute such amounts, including any claim of set-off or reimbursement.
7. Confidentiality.
   1. Confidential Information. Receiving Party will not use, copy or disclose Disclosing Party’s Confidential Information except as permitted herein. Confidential Information will not include information that: (a) is previously rightfully known to the Receiving Party without restriction on disclosure; (b) hereafter becomes known to the general public, through no act or omission on the part of the Receiving Party; (c) is disclosed to the Receiving Party by a third party without breach of any separate nondisclosure obligation; or (d) is independently developed by the Receiving Party without use of Disclosing Party’s Confidential Information. The occurrence of a situation described in subsections (a) through (d) will not reduce or limit Receiving Party’s obligation to protect Personal Data in compliance with applicable Data Protection Laws.
   2. Receiving Party will hold in strict confidence Disclosing Party’s Confidential Information using the same degree of care as Receiving Party holds its own confidential or proprietary information, but no less than reasonable care. Receiving Party may disclose Disclosing Party’s Confidential Information only to those of Receiving Party’s employees, contractors and agents who need such access in connection with this Agreement and who are bound to confidentiality obligations no less stringent than those in this Section 7.
   3. If required by law, rule, requirement, regulation or order of any government, government agency or court, or to establish rights or obligations under this Agreement in any proceeding, Receiving Party may disclose Disclosing Party’s Confidential Information, provided however, that: (a) to the extent legally permitted, Receiving Party gives adequate prior notice of such disclosure to Disclosing Party to permit Disclosing Party an opportunity to contest such disclosures; (b) Receiving Party cooperates with Disclosing Party in complying with any applicable protective order or equivalent; and (c) Receiving Party discloses only to the extent necessary to comply with the legal requirement or to establish such rights or obligations.
   4. Receiving Party will notify Disclosing Party upon discovery of any unauthorized use or disclosure of Disclosing Party’s Confidential Information and will cooperate to help Disclosing Party prevent further unauthorized use or disclosure. Receiving Party acknowledges that Disclosing Party’s Confidential Information is valuable and unique and that unauthorized use or disclosure may result in irreparable injury to Disclosing Party for which monetary damages are inadequate. If Receiving Party violates or threatens to violate this Section 7, Disclosing Party will be entitled to seek injunctive relief without the requirement for securing or posting of any bond in connection with such remedy, in addition to any other available legal or equitable remedies.
8. Term and Termination.
   1. Term. This Agreement will become effective on the Effective Date and will continue for the “Initial Term” indicated on the Order (or (a) for one (1) year if no Initial Term is indicated on the Order or (b) if there is no Order Form because the Services are obtained through an Integration Partner, for such Initial Term as specified by the Integration Partner), unless terminated earlier pursuant hereto. At the end of the Initial Term, this Agreement will automatically renew for successive periods equal to the length of the Initial Term (each, a “Renewal Term”) unless, at least thirty (30) days before expiration, either Party provides notice of non-renewal. The Initial Term and all Renewal Terms are collectively, the “Term”. If the Parties enter into an Order that expires after the Term, the Term will be deemed to expire on the same date as such Order.
   2. Termination for Cause. A party may terminate this Agreement immediately upon notice to the other party if: (a) the other Party materially breaches this Agreement and fails to cure such breach within thirty (30) days (or within ten (10) days in the case of non-payment) after receipt of written notice specifically describing the breach; (b) the other Party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or any such proceeding is instituted against such other Party and is not dismissed within sixty (60) days; or (c) the other Party ceases to do business or otherwise terminates its business operations.
   3. Termination or Suspension by Tapcheck. In addition to the foregoing, Tapcheck may terminate, interrupt and/or suspend Services without notice, in Tapcheck’s sole discretion, to: (a) prevent or protect against fraud, losses, or unauthorized use, (b) to protect Tapcheck from overpayments of Receivable Wages, regardless of the cause, or (c) to protect Tapcheck’s customers, personnel, facilities, equipment, network or Services. Further, Tapcheck may terminate this Agreement if Company fails to timely fund any two (2) payroll payments within a rolling twelve (12) month period. Except as otherwise expressly set forth in this Agreement, as between the Parties, Company will be liable for all amounts (including without limitation, reasonable attorneys’ fees and costs) incurred to collect any amounts due under this Agreement.
   4. Effect of Termination. Upon expiration or termination of this Agreement:
      1. Company immediately will: (i) reimburse Tapcheck or ensure Integration Partner reimburses Tapcheck, as applicable, for any Receivable Wages that Tapcheck paid to Users and that were not yet reimbursed to Tapcheck as of the date of termination; (ii) pay to Tapcheck all other fees or charges then accrued but unpaid; and (iii) with respect to subscription-based Services as set forth in an Order, if any, pay any applicable early termination fee;
      2. All rights and licenses granted by each Party hereunder (other than feedback described in Section 3.4) will terminate; provided, however, that Users may continue to access the Services and Tapcheck will be entitled to (i) retain Company Data for applicable audit and compliance retention periods, and (ii) retain Company Data related to any User that continues to use the Services until such time as such user ceases to use the Services, each subject to the confidentiality restrictions contained in Section 7;
      3. Company will immediately cease all use of the Services, Tapcheck API, other Tapcheck Technology and the Tapcheck Marks, and will immediately remove or destroy any copies of the Documentation or Marketing Materials in its possession;
      4. Each Receiving Party will return (or at Disclosing Party’s option, will destroy and certify in writing to Disclosing Party such destruction of) all Confidential Information of Disclosing Party in Receiving Party’s possession; and
      5. Sections 3, 4, 5.1(h), 7, 8.4, 9.2, and 10-13 of this Agreement will survive expiration or termination of this Agreement.
9. Representations and Warranties.
   1. Representations and Warranties.
      1. Each Party represents and warrants that: (i) it has the full right, power and authority to enter into and fully perform this Agreement and grant the rights granted herein; (ii) it is not bound by any contractual or other legal obligation that would prevent it from entering into or performing its obligations herein; (iii) the execution, delivery and performance of this Agreement has been duly authorized by all necessary corporate action; and (iv) it will comply with all applicable laws, rules and regulations in its performance hereunder, including without limitation Data Protection Laws.
      2. Company further represents and warrants that: (i) it will maintain reasonable administrative, technical and physical safeguards to prevent unauthorized access to or use of the Services and will notify Tapcheck immediately of any known or suspected unauthorized access or use; (ii) it has obtained and maintains all legally required consents and permissions for the use, processing and transfer of Company Data provided to Tapcheck; and (iii) none of its known Users are: (x) designated on any U.S. Government or other governmental list of restricted parties; (y) located in or otherwise ordinarily resident in any country where U.S. or other governmental sanctions or embargo provisions prohibit the provision of the Services; or (z) otherwise prohibited from using, benefiting from or accessing the Services.
      3. Tapcheck further represents and warrants that: (i) it will provide the Services in a professional manner, consistent with recognized industry standards and good commercial practices; and (ii) it will maintain reasonable administrative, technical and physical safeguards to protect the security, confidentiality and integrity of any Company Data stored on, or accessible via, the Services.
   2. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9.1, TAPCHECK MAKES THE SERVICES AVAILABLE ON AN “AS IS” BASIS, DOES NOT REPRESENT OR WARRANT THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, AND DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE, TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, ACCURACY, INTEGRATION, AVAILABILITY AND SECURITY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF WARRANTIES OR LIMITATIONS ON HOW LONG SUCH WARRANTIES LAST, SO THE EXCLUSIONS OR LIMITATIONS IN THIS SECTION 9.2 MAY NOT APPLY. IN ADDITION, THESE EXCLUSIONS AND LIMITATIONS ARE NOT INTENDED TO APPLY TO: (A) DEATH OR BODILY INJURY TO THE EXTENT DIRECTLY CAUSED BY A PARTY’S GROSS NEGLIGENCE; OR (B) A PARTY’S FRAUD OR WILLFUL MISCONDUCT.
10. Indemnification.
    1. Company Indemnity. Company, at its cost, will defend, indemnify and hold harmless Tapcheck, its Affiliates, and their respective officers, directors, employees, agents, successors and assigns (each, a “Tapcheck Indemnitee”), from and against any and all damages, losses, fines, penalties, costs, claims, expenses, liabilities, and other fees (including reasonable attorneys’ fees and costs) (collectively, the “Losses”) arising from or relating to any actual, alleged, or threatened claims, demands, investigations, or causes of action by third parties (each, a “Claim”) based on: (a) unauthorized access to or use of the Services or other Tapcheck Technology; (b) Company Data, including without limitation, Tapcheck’s use of any Company Data as contemplated by this Agreement, late or erroneous payments of Receivable Wages resulting from inaccuracies in the Company Data, Company’s failure to complete one or more of the Company Responsibilities, or Company’s failure to obtain and maintain all legally required consents and permissions for the use, processing and transfer of Company Data provided to Tapcheck; or (c) the amount of Receivable Wages paid to a User.
    2. Tapcheck Indemnity.
       1. Tapcheck, at its cost, will defend, indemnify and hold harmless Company, its Affiliates and their respective officers, directors, employees, agents, successors and assigns (each, a “Company Indemnitee”), from and against any and all Losses arising from or relating to any third party Claim based on allegations that the Services, Tapcheck Technology or Documentation infringe or misappropriate the Intellectual Property Rights of a third party, except to the extent the alleged infringement or misappropriation is attributable to: (i) any unauthorized use, modification or enhancement of the Services, Tapcheck Technology or Documentation; (ii) use of the Services and/or other Tapcheck Technology in combination with other products or services not provided or approved by Tapcheck, where the infringement or misappropriation would not have occurred but for such combination; or (iii) Company Data (an “Infringement Claim”).
       2. If the Services or other Tapcheck Technology (or any element thereof) becomes or, in Tapcheck’s opinion, is reasonably likely to become the subject of an Infringement Claim, Tapcheck may, at its option: (i) procure for Company the right to continue using the Services or Tapcheck Technology; (ii) modify the Services or Tapcheck Technology so that they become non-infringing without substantially compromising their functionality; or if Tapcheck determines that the foregoing (i) and (ii) are not reasonably available to Tapcheck, then (iii) terminate this Agreement and provide a prorated refund to Company of any prepaid, unused fees.
       3. Notwithstanding any other provision of this Agreement to the contrary, the remedies in this Section 10.2 are Company’s sole remedy, and Tapcheck’s entire liability, with respect to any Infringement Claim.
    3. Procedure. The indemnitee (either a Tapcheck Indemnitee or Company Indemnitee, as applicable) will: (a) promptly provide notice to the indemnifying Party of any Claim for which indemnity is claimed (provided, that, any delay in providing notice will not relieve the indemnifying Party of its obligations hereunder, except to the extent that the indemnifying Party is materially prejudiced by such delay); (b) permit the indemnifying Party to control the defense of any such Claim; and (c) provide reasonable assistance at the indemnifying Party’s reasonable cost. Subject to the foregoing, in any Claim for which indemnification is sought, the indemnifying Party may select legal counsel to represent the indemnitee (such counsel to be reasonably satisfactory to the indemnitee) and to otherwise control the defense. If the indemnifying Party elects to control the defense, the indemnitee may fully participate in the defense at its own cost. If the indemnifying Party, within a reasonable time after receipt of notice of Claim, fails to defend the indemnitee, the indemnitee may defend and compromise or settle the Claim at the indemnifying Party’s reasonable cost. Notwithstanding the foregoing, the indemnifying Party may not consent to entry of any judgment or enter into any settlement that imposes liability or obligations on the indemnitee or diminishes the indemnitee's rights, without obtaining the indemnitee's express prior consent, such consent not to be unreasonably withheld, conditioned or delayed.
11. Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, TAPCHECK WILL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING LOST BUSINESS, REVENUES, CUSTOMERS, CONTRACTS, PROFITS OR GOODWILL, LOST OR DAMAGED COMPANY DATA, BUSINESS INTERRUPTION OR REPLACEMENT SERVICES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY, WHETHER OR NOT TAPCHECK KNEW OR HAD REASON TO KNOW OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT THE REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, TAPCHECK’S AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT OF FEES OR CHARGES PAID BY COMPANY TO TAPCHECK DURING THE 12-MONTH PERIOD BEFORE THE DATE ON WHICH THE CLAIM AROSE. NOTWITHSTANDING THE FOREGOING, TAPCHECK WILL NOT BE IN BREACH OF THIS AGREEMENT OR LIABLE TO THE EXTENT THAT TAPCHECK IS UNABLE TO COMPLY WITH THIS AGREEMENT DUE TO ANY NEGLIGENCE, DEFAULT OR FAILURE OF COMPANY TO COMPLY WITH ITS OBLIGATIONS HEREUNDER.
12. Governing Law and Venue; Attorneys’ Fees; Waiver of Jury Trial; Class Action Waiver.
    1. This Agreement and the transactions contemplated hereby will be governed by and construed under the laws of the State of Delaware, without regard to conflicts of laws provisions. Each Party agrees that the Uniform Computer Information Transactions Act or any version thereof will not apply to this Agreement. Each Party agrees that any action, suit or other proceeding arising from or relating to this Agreement (each, a “Dispute”) will be brought and maintained only in a state or federal court of competent jurisdiction located in New Castle County, Delaware. Each Party consents to the mandatory jurisdiction and venue of such courts and waives any right to object to jurisdiction and venue.
    2. The prevailing party in any Dispute will be entitled to recovery of its reasonable attorneys’ fees and costs.
    3. THE PARTIES HEREBY WAIVE TRIAL BY JURY IN ANY DISPUTE, ACTION OR PROCEEDING TO WHICH THEY MAY BE PARTIES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY. THIS WAIVER OF JURY TRIAL IS SEPARATELY GIVEN, KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE.
    4. THE PARTIES HEREBY FURTHER AGREE THAT ANY SUCH DISPUTE, ACTION OR PROCEEDING WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION.
13. General.
    1. Relationship of Parties. The Parties are independent contractors. This Agreement does not establish a partnership, joint venture, association or agency relationship or other co-operative entity between the Parties.
    2. Assignment. Company may not assign or transfer this Agreement or any of the rights, interests or obligations hereunder , except with the prior written consent of Tapcheck. Tapcheck may assign or transfer this Agreement to its Affiliates, or to successors-in-interest to all or substantially all of the business or assets of Tapcheck, in each case without the consent of Company. Any assignment, delegation or transfer in violation of this provision will be null and void. This Agreement will be binding upon, and inure to the benefit of, all successors and permitted assigns of the parties.
    3. Order of Precedence. If there is a conflict between the terms and conditions of this Agreement and any Order, the conflict will be resolved in the following order of precedence: (a) Agreement; (b) Order.
    4. Remedies; Injunctive Relief. All rights and remedies of the Parties under this Agreement are cumulative and the exercise of one remedy will not exclude election of other remedies. The Parties acknowledge that a breach or threatened breach of Sections 3, 4 or 7 of this Agreement will result in irreparable injury, for which monetary damages alone would not be an adequate remedy. Each Party therefore agrees that, in addition to any other legal or equitable remedies available, a Party may seek injunctive or other equitable relief in any court of competent jurisdiction as a remedy for any breach or threatened breach, without the requirement for securing or posting of any bond in connection with such remedy.
    5. Notices. All notices, requests, approvals, consents and other communications required or permitted under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted during normal business hours by facsimile or e-mail; and upon receipt, if sent by certified or registered mail, return receipt requested, to a Party at its address indicated on the Order (or such other address as provided by that Party). Either Party may change its contact information upon notice to the other Party. If a notice is not received because the receiving Party has failed to notify the other Party per the preceding sentence or because receipt is refused, such notice nonetheless will be deemed conclusively made seven (7) days after delivery was reasonably initiated.
    6. Publicity. Except as expressly permitted herein, neither party will issue press releases relating to this Agreement or the terms of this arrangement without the prior written consent of the other party, which consent or refusal shall not be unreasonably withheld or delayed. Notwithstanding, Tapcheck may indicate that Company is a customer on Tapcheck’s website and standard marketing materials.
    7. Amendments. Tapcheck may amend this Agreement and any schedules and/or policies referenced herein (except any Orders, for which an amendment requires the mutual written agreement of the parties). If Tapcheck makes a material change to the Agreement, Tapcheck will give reasonable prior notice, either to the email address on file or by message sent through the Services. The most current version of this Agreement may be reviewed at any time by visiting this webpage, as well as any other webpages referenced herein. The materially amended Agreement will become effective on the date set forth in Tapcheck’s notice, and all other changes will become effective upon posting of the change. Any access to or use of the Services after such effective date will constitute acceptance of the amended Agreement.
    8. Waiver. A Party’s failure to exercise or enforce any provision of this Agreement will not be deemed a waiver of future exercise or enforcement of that or any other provision.
    9. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement. The Agreement is for the sole benefit of the Parties and their respective successors and permitted assignees.
    10. Entire Agreement. This Agreement includes the Order(s) that are entered into hereunder and fully incorporated herein by this reference. This Agreement is the entire agreement between the Parties with respect to its subject matter and supersedes all other prior or contemporaneous representations, understandings or agreements; and there are no other representations, understandings or agreements between the Parties relative to such subject matter.
    11. Force Majeure. Neither Party will be liable by reason of any failure or delay in performing its obligations hereunder due to any act of God, war, military action, governmental restriction or action, civil disorder or unrest, terrorism, explosion, accident, fire, flood or other natural disaster, vandalism, sabotage, labor condition, shortage, embargo, malicious code or online attacks or other cause beyond such Party’s reasonable control (each, a “Force Majeure Event”), provided that the Party claiming such cause has taken commercially reasonable steps to prevent or mitigate such cause. A Party whose performance is affected by a Force Majeure Event will promptly provide notice with relevant details to the other Party, the notifying Party’s obligations will be suspended to the extent caused by such Force Majeure Event for as long as it continues, and the time to perform the affected obligation will be extended by the delay caused by the Force Majeure Event.
    12. Headings. Headings are for convenience only and will not affect the construction or interpretation of this Agreement. Each Party and its counsel have fully reviewed and contributed to this Agreement. Any rule of construction that ambiguities are resolved against the drafter will not apply in interpreting the Agreement.
    13. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, such holding will not render the Agreement unenforceable or contrary to law as a whole; and such provision will be changed and interpreted to best accomplish the objectives of the provision subject to applicable law.
    14. Basis of Bargain. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL, BARGAINED FOR BASES OF THIS AGREEMENT AND HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.
14. Contact Us.
    If you have any questions about this Agreement or the Services, please contact us at:
    
    Tapcheck Inc.
    5850 Granite Parkway, Suite 1000
    Plano, Texas 75024
    Email: support@tapcheck.com 
    Web: www.tapcheck.com