Master Service Agreement

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Master Services Agreement

Last updated on November 4, 2020

This master services agreement (“Agreement”) governs the Client’s access to and the use of the services including any software as a service of the entity set forth under Section 10.18 (“Push Technologies”) on or through Push Technologies’ website (the “Site”) https://pushoperations.com/ (“Services”). Capitalized terms have the definitions set forth herein.

If the Client registers for a free trial of any Push Technologies Services or for any Services that are free, the applicable provisions of this Agreement will also govern that free trial or those free Services. The term the “Client” refers to the specific individual or legal entity that accepts this Agreement and receives any Services from Push Technologies (including free trial and free Services) and does not include any affiliates of such legal entity unless expressly stated otherwise in this Agreement, any Sales Order or any Additional Service Terms.

BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING A SALES ORDER THAT REFERENCES THIS AGREEMENT (a “Sales Order”), OR (3) USING FREE SERVICES, THE CLIENT AGREES TO THE TERMS OF THIS AGREEMENT EFFECTIVE AS OF THE EARLIEST OF THE DATE OF SUCH ACTION (the “Effective Date”). IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

Push Technologies’ direct competitors are prohibited from accessing the Services, except with Push Technologies prior written consent.

Please review Section 10.13 of this Agreement carefully, as it contains an arbitration provision and class action waiver which requires the Client to resolve disputes with Push Technologies through final, binding arbitration on an individual basis. By entering into this Agreement, the Client is acknowledging that the Client has read and that the Client understands the terms of this Agreement and that the Client agrees to be bound by the arbitration provision and class action waiver.

1.      Structure of Agreement; Procurement of Services

1.1.   Scope and Structure of the Agreement.

Push Technologies’ provision of any Services is subject to the terms of this Agreement, applicable Sales Order (“Sales Order”) and any additional service terms (“Additional Service Terms”) referenced herein or which Push Technologies may present the Client with for review and acceptance at the time the Client subscribes to any Services shall be incorporated into and form a part of this Agreement.

If the terms hereof conflict with any Additional Service Terms, the Additional Service Terms will govern with respect to the matters contemplated thereby.

Push Technologies will provide the Client with access to the subscription Services through the Internet during the Client’s Subscription Term specified on the applicable Sales Order.

The Services are subject to modification from time to time at Push Technologies’ sole discretion, for any purpose deemed appropriate by Push Technologies. Push Technologies will use reasonable efforts to give the Client prior written notice of any such modification.

1.2.    Procurement of Services Pursuant to Sales Order(s).

Push Technologies personnel will perform the Services in accordance with this Agreement and an applicable Sales Order, each of which is incorporated into and within the terms of this Agreement. When the Client desires to procure Services from Push Technologies, the parties will execute a Sales Order which will specify, among other things, the type of services requested by the Client including but not limited to, a detailed description of Services requested by the Client in such Sales Order, and the duration of the term and fees due for such Services.

1.3.     Additional Terms for Services

If the Client chooses to subscribe to the following add-on service, then the Client agrees to be bound by the Additional Service Terms listed next to such add-on service, which is incorporated herein by reference, as applicable to the Client.

Add-On Service                                                      Additional Service Terms

Payroll and Reporting Services                                  Payroll and Reporting Services Terms

Push Affordable Care Act (ACA) Solution               Push Affordable Care Act (ACA) Terms

2.          Software as a Service.

2.1.      Grant of License to Hosted Service.

Subject to timely payment by the Client of fees for the Services as set forth in the applicable Sales Order, Push Technologies grants to the Client for the term of this Agreement a personal, non-exclusive, non-transferable, royalty-free, non-sublicensable, non-assignable, license to use and access on a hosted basis the Push Technologies Services solely for the Client’s internal business operations in accordance with the terms of this Agreement and the applicable exhibit and/or schedule. The Push Technologies Services do not include any Client specific customizations unless otherwise agreed in writing by the parties. The Push Technologies software and Services are hosted in the United States for worldwide users and is hosted in Canada for Canadian users only.

2.2.        Restricted Uses. The Client will not:

1. upload or distribute of any files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of the Services;
2. modify, disassemble, decompile or reverse engineer the Services;
3. probe, scan, test the vulnerability of, or circumvent any security mechanisms used by, the sites, servers, or networks connected to the Services;
4. take any action that imposes an unreasonably or disproportionately large load on the sites, servers, or networks connected to the Services;
5. copy or reproduce the Services;
6. access or use any other clients’ or their users’ data through the Services;
7. maliciously reduce or impair the accessibility of the Services;
8. use the Services to post, promote, or transmit any unlawful, harassing, libelous, abusive, threatening, harmful, hateful, or otherwise objectionable material; or
9. transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability.

2.3.          Client’s Obligations:

1. The Client shall be responsible for obtaining and maintaining all computer hardware, software, and communications equipment needed to internally access the Services, and paying all third-party access charges incurred while using the Services.
2. The Client shall be responsible for implementing, maintaining, and updating all necessary and proper procedures and software for safeguarding against computer infection, viruses, worms, Trojan horses, and other code that manifest contaminating or destructive properties (collectively “Viruses”).
3. The Client shall abide by all local and international laws and regulations applicable to its use of the Services, use the Services only for legal purposes, and comply with all regulations, policies and procedures of networks connected to the Services.

2.4.         Client’s Responsibility for Certain Information and Obligations related to the Services

The Client will designate and authorize either itself and/or one or more individuals with authority to (i) act on the Client’s behalf, (ii) provide information on the Client’s behalf, and (iii) bind the Client and/or the Client’s business with respect to the Services (each such individual, an “Account Administrator”). An Account Administrator is authorized by the Client to access the Services by entering a confidential user ID and password. Such Client Account login information will entitle the Account Administrator, depending on their designation and the permissions given by the Client, to have the authority to input information and access, review, modify, and/or provide approvals on the Client’s behalf.

The Client is solely responsible for all actions taken under any Client Account that the Client has access to. Any actions taken under the Client Account that the Client has access to will be deemed authorized by the Client, regardless of the Client’s knowledge of such actions (the “Authorized Actions”). Authorized Actions include but are not limited to (i) actions taken by the Client, an Account Administrator, or an authorized representative of the Client (an “Authorized Representative”), and (ii) actions that the Client, an Account Administrator, or an Authorized Representative (or anyone that Push Technologies reasonably believes to be the Client, an Account Administrator, or an Authorized Representative) directs or instructs Push Technologies to take on its behalf.

In addition, the Client is solely responsible for (i) following instructions that Push Technologies provides to the Client with respect to the Services, whether such instructions are provided via the Site, Services, email, or otherwise, (ii) obtaining, maintaining, and keeping secure any equipment and ancillary services necessary to connect to, access, or otherwise utilize the Services, including but not limited to internet access, networking equipment, hardware, software, and operating systems, and (iii) maintaining applicable accounts with providers of Third-Party Services (as defined below) utilized by the Client.

The Client will, and will cause authorized users of the Client Account, including but not limited to Account Administrators and Authorized Representatives, to take reasonable steps to adequately secure, and keep confidential, any Client Account passwords or credentials, and any information accessible via the Client Account. If the Client believes or suspects that Client Account or passwords or credentials for the Client’s Account have been disclosed to, accessed by, or compromised by unauthorized persons, the Client must immediately notify Push Technologies. Push Technologies reserves the right to prevent access to the Services if Push Technologies has reason to believe that the Client Account or passwords or credentials for the Client Account have been compromised.

The Client is responsible for timely providing Push Technologies with the information required for Push Technologies to perform the Services. The Client may furnish such information directly to Push Technologies or via an Account Administrator or Authorized Representative, such as the Client’s accountant. Furthermore, the Client represents and warrants to Push Technologies that for any information that the Client shares with Push Technologies, whether directly, via its Account Administrator, or via its Authorized Representative, the Client will have the authority to share such information. The Client is responsible for the accuracy and completeness of information provided to Push Technologies, and the Client will ensure that any such information, whether provided by the Client, an Account Administrator, or Authorized Representative, is accurate and complete. Moreover, the Client is required to maintain the accuracy and completeness of such information on an ongoing basis and will promptly notify Push Technologies, whether directly or through an Account Administrator or Authorized Representative, of any changes to the information provided to Push Technologies.

In addition, the Client, whether directly or through its Account Administrators or Authorized Representatives, is responsible for reviewing any reports, filings, information, documents or materials (collectively, the “Materials”) posted to Push Technologies Site by Push Technologies (or otherwise made available to the Client by Push Technologies) for the Client’s review, and the Client or its Account Administrators or Authorized Representatives must notify Push Technologies of any inaccuracies in the Materials as soon as possible, or within the time period specified in communications received from Push Technologies.

Push Technologies through the normal course of business may enter the Client’s information into the Site as instructed by the Client. The Client is responsible for checking to ensure the Client information entered is correct. Push Technologies shall not be held liable for any incorrect the Client information entered into the Site.

The Client, whether directly or through its Account Administrators or Authorized Representatives, is also obligated to promptly notify Push Technologies of any third-party notices that the Client may receive which could affect Push Technologies’ ability to effectively provide the Services or increase the likelihood that a Claim (as defined below) is brought against the Client or Push Technologies in connection with the Services, such as notices from any government agencies regarding penalties or errors relating to the Services.

The Client agrees that, to the fullest extent permitted by law, the provision of the Client Account login credentials (e.g., username and password) or identity verification credentials to Push Technologies by the Client, an Account Administrator, or an Authorized Representative, together with any actions authorized by such foregoing parties via the Site (e.g., clicking the “Submit Payroll” or other buttons) or otherwise (e.g., verbally telling a Push Technologies customer care representative to take an action), will have the same effect as such parties providing a written signature authorizing electronic payments, filings, or any other actions in connection with the Services.

2.5.       Records.

Push Technologies will store and host the Client’s records through the use of Push Technologies’ applications but does not serve as the Client’s record keeper. Push Technologies is responsible for ensuring data is backed up in multiple places and recoverable in-case of natural disasters.

The Client will be responsible for retaining copies of all documentation received from or provided to Push Technologies in connection with the Services to the extent required by the Client or applicable law.  For example, if the law requires documents to be printed in physical copies, that is the responsibility of the Client.

2.6.       Use of Push Technologies Software and Services.

Push Technologies Services include confidential and proprietary information. The Client shall use the Push Technologies Services only for its internal business purposes. The Client shall not provide, directly or indirectly, any of the Push Technologies Services or any portion thereof to any other party. The Client shall not provide service bureau or other data processing services that make use of the Push Technologies Services or any part thereof without the express written consent of Push Technologies. The Client shall be responsible for the use of the Services by its employees, plan participants and any other persons authorized by the Client to access or use the Services in accordance with the terms of this Agreement. The Client is responsible for the accuracy and completeness of all information and materials provided by the Client, its agents or employees, regardless of form (“Client Content”).

2.7.        Compliance.

2.7.1.      Applicable Laws.

Each party will comply with applicable laws and regulations that affect its business generally, including any applicable anti-bribery, export control and data protection laws, rules and regulations. The Client warrants and agrees it is solely responsible for complying with all applicable federal, provincial, state, territorial, county and local wage and hour and employment laws and regulations, including without limitation, rates of pay, overtime pay, bonus compensation and employee classifications of overtime exemptions. For clarity, the Client represents that Personal Information (as hereinafter defined), transferred by the Client or at the Client’s direction to Push Technologies has been collected in accordance with applicable privacy and data protection laws, and Push Technologies agrees that it shall only process the Personal Information as needed to perform the Services, as instructed by the Client, or as required or permitted by law.

2.7.2.      Design of the Services.

Push Technologies will design the Services, including the functions and processes applicable to the performance of the Services, to assist the Client in complying with its legal and regulatory requirements applicable to the Services, and Push Technologies will be responsible for the accuracy of such design. Notwithstanding the foregoing, the Client and not Push Technologies will be responsible for

• how it uses the Services to comply with its legal and regulatory requirements; and
• the consequences of any instructions that it gives or fails to give to Push Technologies, including as part of the implementation of the Services, provided Push Technologies follows such instructions.

2.7.3.       No Legal or Regulatory Advice.

The Client acknowledges that Push Technologies has no responsibility for any services prior to the Effective Date of this Agreement, and agrees that in the performance of its Services, Push Technologies is not rendering any legal, tax, accounting, financial, regulatory, benefits, accounting or investment advice to Client.

2.7.4.      Online Statements.

If the Client instructs Push Technologies to provide online pay statements or personal income tax forms without physical copies thereof, the Client will be exclusively responsible for determining if and to what extent the Client’s use of online pay statements or personal income tax forms satisfies the Client’s obligations under applicable laws and the consequences resulting from such determinations.

3.            INTELLECTUAL PROPERTY

3.1.         Client’s IP Rights.

Except for the rights expressly granted to Push Technologies in this Agreement, all rights, title and interests in and to the Client Content, including all Intellectual Property Rights (as hereinafter defined) inherent therein and pertaining thereto, are owned exclusively by the Client or its licensors. The Client hereby grants to Push Technologies for the term of this Agreement a non-exclusive, worldwide, non-transferable, royalty-free license to use, edit, modify, adapt, translate, exhibit, publish, reproduce, copy and display the Client Content for the sole purpose of performing the Services; provided the Client has the right to pre-approve the use by Push Technologies of any of the Client’s trademarks or service marks. For the purposes of this Agreement, “Intellectual Property Rights” means all rights, title and interest to or in patent, copyright, trademark, service mark, trade secret, business or trade name, know-how and rights of a similar or corresponding character.

3.2.          Push Technologies IP Rights.

Except for the rights expressly granted to the Client in this Agreement, all rights, title and interest in and to the Services, including all Intellectual Property Rights inherent therein and pertaining thereto, are owned exclusively by Push Technologies or its licensors. The Client will not obscure, alter or remove any copyright, trademark, service mark or proprietary rights notices on any materials provided by Push Technologies in connection with the Services, and will not copy, decompile, recompile, disassemble, reverse engineer, or make or distribute any other form of, or any derivative work from, such Push Technologies materials.

3.3.           Ownership of Reports.

The Client will retain ownership of the content of reports and other materials that include Client Content produced and delivered by Push Technologies as a part of the Services, provided that Push Technologies will be the owner of the format of such reports. To the extent any such reports or other materials incorporate any Push Technologies proprietary information, Push Technologies

• retains sole ownership of such proprietary information; and
• provides the Client a fully paid up, irrevocable, perpetual, royalty-free license to access and use same for its internal business purposes without the right to create derivative works (other than derivative works to be used solely for its internal business purposes) or to further distribute any of the foregoing rights except to its employees, plan participants and any other persons authorized by the Client to access or use the Services.

3.4.          Use of Logos

The Client hereby grants to Push Technologies the express right to use the Client’s company logo in marketing, sales, financial, and public relations materials and other communications solely to identify the Client as a Push Technologies customer. Push Technologies hereby grants to the Client the express right to use Push Technologies’ logo solely to identify Push Technologies as a provider of services to the Client. Other than as expressly stated herein, neither party shall use the other party’s marks, codes, drawings or specifications without the prior written permission of the other party.

4.              CONFIDENTIALITY

All Confidential Information (defined below) disclosed hereunder will remain the exclusive and confidential property of the disclosing party. The receiving party will not disclose the Confidential Information of the disclosing party and will use at least the same degree of care, discretion and diligence in protecting the Confidential Information of the disclosing party as it uses with respect to its own confidential information, but in no case less than reasonable care. The receiving party will limit access to Confidential Information to its employees and authorized representatives with a need to know and will instruct them to keep such information confidential. Notwithstanding the foregoing, the receiving party may disclose Confidential Information of the disclosing party

1. to the extent necessary to comply with any law, rule, regulation or ruling applicable to it;
2. as appropriate and with prior notice where practicable, to respond to any summons or subpoena or in connection with any litigation;
3. relating to a specific employee, to the extent such employee has consented to its release; and/or
4. in order to provide the Services under this Agreement. Upon the request of the disclosing party, the receiving party will return or destroy all Confidential Information of the disclosing party that is in its possession.

Notwithstanding the foregoing,

1. Push Technologies may retain the Client’s Confidential Information for regulatory purposes or in back-up files, provided that Push Technologies’ confidentiality obligations hereunder continue to apply; and/or
2. Push Technologies may use the Client’s and its employees’ and participants’ information for purposes other than the performance of the Services but only in an aggregated, anonymized form, such that neither the Client nor its employees or participants may be identified, and the Client will have no ownership interest in such aggregated, anonymized data.

4.1.        “Confidential Information” shall mean:

all information of a confidential or proprietary nature, including pricing and pricing related information and all personally identifiable payroll and employee-level data, or know-how (including, but not limited to, information relating to research, products, software, development, inventions, and that they constitute the commercially valuable proprietary products and/or services and trade secrets of the respective party,(regardless of whether they may be copyrighted, patented or trademarked), provided by the disclosing party to the receiving party for use in connection with Push Technologies Services.

4.2.         Exceptions.

Notwithstanding the foregoing, Confidential Information shall not include information which

• has entered the public domain by no action of the receiving party hereunder;
• was already rightfully in the possession of the receiving party when received by the disclosing party;
• is received from a third party without breach of any obligation owed to the disclosing party; or
• was developed independently by the receiving party by individuals without reference to disclosing party’s Confidential Information, as evidenced by its records.

The obligations of Push Technologies set forth in this Section 4 shall not apply to any suggestions and feedback, ideas, enhancement requests, recommendations or other information provided by the Client relating to the Push Technologies Services (all of the foregoing defined as “Feedback”) and the Client hereby grants to Push Technologies the right to make such use of Feedback in perpetuity to improve and enhance Push Technologies Services, in connection with any present or future Push Technologies product or service, and, accordingly, neither Push Technologies nor any of its clients or business partners shall have any obligation or liability to the Client with respect to any use or disclosure of such information.

5.         Fees

5.1.      Fees.

The Client shall pay Push Technologies for the Services at the rates specified in the applicable Sales Order after the Effective Date during the Initial Term of this Agreement. After the Initial Term, the Client shall pay Push Technologies for such Services at Push Technologies’ then prevailing prices for such Services. Push Technologies may increase prices for the Push Technologies Services at any time after the Initial Term upon at least thirty (30) days prior written notice to the Client if such change is part of a general price change by Push Technologies to its clients for affected items.

5.2.       Invoicing and Payment Terms.

Commencement of billing for Services shall be set forth in the respective Sales Order governing the Services. The Client will pay all invoices in full within thirty (30) days of the invoice date. The Client shall reimburse Push Technologies for any expenses incurred, including interest and reasonable legal fees, in collecting amounts past due to Push Technologies hereunder that are not under good faith disputed by the Client.

5.3.        Taxes.

The Client shall be responsible for payment of all taxes (excluding those on Push Technologies’ net income) relating to the provision of the Services, except to the extent a valid tax exemption certificate or other written documentation acceptable to Push Technologies to evidence the Client’s tax exemption status is provided by the Client to Push Technologies prior to the delivery of Services.

6.            Term and Termination

6.1.         Term.

Subject to earlier termination as provided below, this Agreement is for the Subscription Term as specified in the Sales Order (the “Initial Term”). Unless stated otherwise in the Sales Order, the Subscription Term shall automatically renew for a one (1) year period at the list price in effect at the time of renewal unless either party gives the other party notice of non-renewal at least forty-five (45) days prior to the end of the then-current Subscription Term.

6.2.         Termination for Cause.

Either party may terminate, in whole or in part, this Agreement or any Sales Order for cause if:

1. one party breaches any material provision of this Agreement or any Sales Order or repeatedly breaches any provision, and then fails to cure or remedy such breach within ninety (90) calendar days of receiving written notice from the non-breaching party specifying in reasonable detail the nature of such breach(es);
2. the other party ceases business operations; or
3. the other party becomes insolvent, generally stops paying its debts as they become due or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against the other (and not dismissed within ninety (90) days after commencement of one of the foregoing events).

Push Technologies may also suspend performance immediately without prior notice in the event the Client, its employee(s) or any other third party

1. includes in any Site any Client Content which is obscene, offensive, inappropriate, threatening, or malicious; which violates any applicable law or regulation or any contract, privacy or other third party right; or which otherwise exposes Push Technologies to civil or criminal liability; or
2. wrongfully uses or accesses the Push Technologies Services or any other software or systems of Push Technologies.
3. Push Technologies may also immediately terminate this Agreement or the Services if the Client has violated or, if conducting business with the Client, a payee of the Client, or the Client’s subsidiary is in violation of, any of the rules or regulations promulgated by FINTRAC (if the Client operates in Canada) or NACHA (if the Client operates in the United States of America).

6.3.        Termination Without Cause.

Push Technologies may terminate this Agreement without cause upon thirty (30) calendar days’ prior written notice to the Client.

Push Technologies will have no liability for any costs, losses, damages, penalties, fines, expenses, or liabilities arising out of or related to Push Technologies’ termination of this Agreement.

6.4.        Termination/Suspension of Payment Services.

Without limiting the foregoing, the parties agree that any Services that involve electronic or cheque payments being made by Push Technologies to third parties on the Client’s behalf (collectively “Payment Services”) and at its direction involve a credit risk to Push Technologies. Such Services may be immediately suspended or terminated by Push Technologies without prior notice if

1. Push Technologies has not received timely funds from the Client;
2. a bank notifies Push Technologies that it is no longer willing to originate debits from the Client’s account(s) and/or credits on the Client’s behalf for any reason;
3. the authorization to debit the Client’s account is terminated or Push Technologies reasonably believes that there is or has been fraudulent activity on the account;
4. Push Technologies reasonably determines that the Client no longer meets Push Technologies’ credit/financial eligibility requirements for such Services;
5. the Client has any material adverse change in its financial condition; or
6. Push Technologies reasonably determines that the Client presents an undue credit risk to Push Technologies or in the event of any other termination right.

If Payment Services are not terminated despite the occurrence of any of the events described above, Push Technologies may require the Client to pay its outstanding and all future third-party payment amounts covered by Payment Services and/or Push Technologies’ fees and charges for Payment Services to Push Technologies:

1. by bank or certified cheque;
2. by wire transfer of immediately available funds; and/or
3. advance of the then current schedule, as a condition to receiving further Payment Services.

6.5.        Post-Termination.

If use of any Push Technologies Services is or may be terminated by Push Technologies pursuant to Section 6.2, 6.3, or 6.4, Push Technologies shall be entitled to allocate any funds remitted or otherwise made available by the Client to Push Technologies in such priorities as Push Technologies (in its sole discretion) deems appropriate (including reimbursing Push Technologies for payments made by Push Technologies hereunder on the Client’s behalf to a third party). If any Push Technologies Services are terminated by either party hereto, the Client will immediately

1. become solely responsible for all of its third-party payment obligations covered by such Push Technologies Services then or thereafter due;
2. reimburse Push Technologies for all payments made by Push Technologies hereunder on the Client’s behalf to any third party; and
3. pay any and all fees and charges invoiced by Push Technologies to the Client relating to the Push Technologies Services.

Upon termination of any of the Service(s) and/or termination of this Agreement, any license or right to access and use such terminated Services(s) will automatically terminate; provided, however, that Push Technologies will, for 30 days after the effective date of termination, continue to provide the Client with the ability to access the Client’s account with Push Technologies for access or use of the Services (“Client Account”) in a limited capacity with respect to such terminated Service(s) to view and download information that was available in the Client’s Account at the time of termination of such Service(s) (the “Limited Access Rights”). While the Client has Limited Access Rights, the Client must use reasonable efforts to adequately secure, and keep confidential, any passwords or credentials for the Client’s Account, and any information accessible via the Client’s Account. Push Technologies may deny the Limited Access Rights to the Client, or Push Technologies may revoke the Limited Access Rights at any time, in its sole discretion, if it has any reason to believe that the Client may have at any time breached Section 2.2 and 2.3 of this Agreement.

6.6.  Downgrades

You may not downgrade your Services or reduce the number of seats under any Services during your Subscription Term. If you desire to downgrade your Services or reduce the number of seats under any Services for a Subsequent Term, you must provide Push Technologies with thirty (30) days advance written notice prior to the end of your then-current Subscription Term. Downgrading your Services may cause loss of content, features, or capacity of the Services as available to you under your Push Account, and Push Technologies does not accept any liability for such loss.

6.7. No Refunds

Unless otherwise noted in this Agreement, if you elect to terminate your subscription to the Services or cancel your Push Account prior to the end of your then-current Subscription Term, no refunds or credits for subscription charges or other fees or payments will be provided to you.

6.8.       Surviving Provisions.

Sections 2.2 (Restricted Use), 2.3 (Client Obligations), 3 (Intellectual Property), 4 (Confidentiality), 5 (Fees), 6.5 (Post Termination), 7 (Warranties, Disclaimer and Limitation of Liability), 8 (Indemnification), and 10 (General Provisions) shall survive any termination or expiration of this Agreement.

7.           Warranties, Disclaimer and Limitation of Liability.

7.1.        Compliance.

Each party represents and warrants that it has the legal power and authority to enter into this Agreement and there is no outstanding contract, commitment, or legal impediment which may limit, restrict, or impair its ability to perform its obligations hereunder. In addition, Push Technologies represents and warrants that it has all necessary rights and titles in and to the Service.

7.2.       Performance.

Push Technologies represents and warrants that it will perform such Services in a diligent and professional manner, and the Services will comply with industry standards for such Services. Push Technologies further warrants that it will strictly comply with the descriptions and schedule as set forth in this Agreement and the applicable Sales Order.

7.3.         Accuracy of Client Content

The Client represents and warrants that it is solely responsible for providing complete and accurate information to Push Technologies with respect to all Client Content, including without limitation, employee data, hours worked, rate of pay, authorized deductions, and tax withholdings.

7.4.         DISCLAIMER.

EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, THE SERVICES AND THE SOFTWARE ARE PROVIDED ON AN “AS IS” BASIS AND PUSH TECHNOLOGIES AND ITS LICENSORS EXPRESSLY DISCLAIM ANY WARRANTY, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE, AND FREEDOM FROM PROGRAM ERRORS, VIRUSES OR ANY OTHER MALICIOUS CODE WITH RESPECT TO THE SERVICES AND SOFTWARE, ANY CUSTOM PROGRAMS CREATED BY PUSH TECHNOLOGIES OR ANY THIRD-PARTY SOFTWARE DELIVERED BY PUSH TECHNOLOGIES. PUSH TECHNOLOGIES AND ITS LICENSORS FURTHER DISCLAIM ANY WARRANTY THAT THE RESULTS OBTAINED THROUGH THE USE OF THE SERVICES AND SOFTWARE, ANY CUSTOM PROGRAMS CREATED BY PUSH TECHNOLOGIES OR ANY THIRD-PARTY SOFTWARE DELIVERED BY PUSH TECHNOLOGIES WILL MEET THE CLIENT’S NEEDS.

7.5.         LIMITATION OF LIABILITY.

Push Technologies shall be liable only for actual damages the Client may incur as a result of Push Technologies’ breach of, or exercise of its rights under, this Agreement, and shall not be liable for any special, indirect, incidental, punitive or consequential damages which the Client may incur even if the likelihood of such damages was known or contemplated by Push Technologies and regardless of the legal or equitable theory of liability that the Client may assert, including, without limitation, loss or damage from subsequent wrongful dishonour resulting from any financial institutions’ acts or omissions. Push Technologies shall not be liable for any damages to the Client resulting from any decision by Push Technologies to withhold cheques in connection with the Client’s payroll due to concerns regarding the Client’s creditworthiness or because the Client failed to provide funds necessary to cover the Client’s payroll, and all applicable tax and other payments. Without limiting the generality of the foregoing, Push Technologies shall be excused from failing to act or any delay in acting if such failure or delay is caused by legal constraint, terrorist activity, and interruption of transmission or communication facilities, equipment failure, war, emergency conditions or other circumstances beyond Push Technologies’ control. Subject to the foregoing limitations, Push Technologies’ liability for loss of interest resulting from its error or delay shall be calculated by using a rate equal to the average bank rate at the Bank of Canada for the period involved.

IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS’ AGGREGATE LIABILITY FOR DIRECT ACTUAL DAMAGES OR CLAIMS ARISING UNDER THE AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM THE CLIENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. NEITHER PUSH TECHNOLOGIES NOR THE CLIENT WILL BE RESPONSIBLE FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS OR DAMAGES FOR BUSINESS INTERRUPTION OR, LOSS OF INFORMATION) THAT THE OTHER PARTY MAY INCUR OR EXPERIENCE IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES OR PUSH TECHNOLOGIES SERVICES, HOWEVER CAUSED AND UNDER WHATEVER THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8.          Indemnification

8.1.        The Client shall defend, indemnify and hold the Push Technologies harmless from and against any and all liability, loss, expense, including reasonable legal fees, or claims for injury or damages arising out of the performance of this Agreement that are caused by or result from the negligent or intentional acts or omissions of the Client, its officers, agents, or employees.

8.2.        Subject to Sections 8.3 and 8.5, Push Technologies shall defend the Client in any suit or cause of action, and indemnify and hold the Client harmless against any damages payable to any third party in any such suit or cause of action, alleging that the Push Technologies Services as used in accordance with this Agreement infringes any Canadian or U.S. patent, copyright, trade secret or other proprietary right of any third party (each an “Infringement Claim”).

8.3.        Push Technologies shall not be responsible for the Client’s acts or omissions (including, without limitation, the amount, accuracy, timeliness of transmittal, or authorization of any entry received from the Client). The Client shall indemnify Push Technologies against any loss, liability, damages, costs or expenses (including legal fees and costs) resulting from or arising out of the Client’s performance or failure to perform its obligations under this Agreement.

8.4.        Subject to Sections 8.3 and 8.5, each party shall defend each other party and its  officers, agents, and employees against any third-party claim, demand, suit or proceeding made or brought by a third party, arising out of or caused by the breach or alleged breach by the indemnifying party of its representations, warranties and obligations contained in this Agreement (a “Breach Claim”, together with the Infringement Claim, “Claims” and each a “Claim”). The indemnifying party shall indemnify the indemnified party for any damages, legal fees and costs finally awarded as a result of, or any amounts paid under a court-approved settlement of, a Claim against such party; provided that the indemnified party

1. promptly gives the indemnifying party written notice of the Claim;
2. gives the indemnifying party sole control of the defense and settlement of the Claim (provided the indemnifying party may not settle or defend any Claim against the indemnified party unless it unconditionally releases the indemnified party of all liability); and
3. provides to the indemnifying party all reasonable assistance, at the indemnifying party’s expense.

8.5.        Notwithstanding the provisions of this Section 8, Push Technologies will have no liability to the extent that any such Claim would have been avoided but for

1. modification of the Services or any deliverable after delivery by Push Technologies;
2. the Client’s failure to use updated or modified Services or deliverables provided at no cost as a replacement for the original Services by Push Technologies to avoid such a claim; or
3. any use of the Services or deliverables not in accordance with the applicable Sales Order and this Agreement.

8.6.        In the event that any Service or deliverable is, or is likely to be, infringing, Push Technologies, at its option and expense, may either

1. modify the Service(s) or deliverables so that they become non-infringing;
2. replace the Services or deliverables with functionally equivalent non-infringing services reasonably acceptable to the Client; and/or
3. procure for the Client the right to continue use, or, if the foregoing alternatives are not reasonably available to the Client terminate the relevant Sales Order and refund the fees paid for the affected Services or affected deliverables under such Sales Order.

8.7.        This “Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this section.

9.           SECURITY AND CONTROLS

9.1.        Business Continuity; Disaster Recovery.

Push Technologies maintains a commercially reasonable business continuity and disaster recovery plan and will follow such plan.

9.2.        Data Security.

Push Technologies has an established information security program containing appropriate administrative, technical and physical measures to protect the Client’s data (including any Personal Information therein) against accidental or unlawful destruction, alteration, unauthorized disclosure or access consistent with applicable laws and data processing industry standards. For purposes of this Agreement, “Personal Information” means information relating to an identified or identifiable natural person. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to such person’s physical, physiological, mental, economic, cultural or social identity. In the event Push Technologies suspects any unauthorized access to, or use of, the Services, Push Technologies may suspend access to the Services to the extent Push Technologies deems necessary to preserve the security of the Client’s data.

9.3.        Data Security Incident Notification.

If Push Technologies becomes aware of a security breach (as defined in any applicable law) or any other event that compromises the security, confidentiality or integrity of the Client’s Personal Information (an “Incident”), Push Technologies will take appropriate actions to contain, investigate and mitigate the Incident. In the event that applicable law requires notification to individuals and others of such an Incident, Push Technologies will take additional mitigation steps including providing assistance with the drafting and mailing of such notifications. Push Technologies and the Client shall mutually agree on the content and timing of any such notification, in good faith and as needed to meet applicable legal requirements.

10.         GENERAL PROVISIONS:

10.1.      Independent Contractor Status

Push Technologies is an independent contractor and is not a joint venturer, employee, agent or partner of the Client. Neither party will have the right to obligate or bind the other party in any manner whatsoever.

10.2.       Force majeure

If any party fails to perform its obligations under this Agreement as a result of acts of God, labour disputes, strikes, actions of governmental authority, acts of terrorism, wars, judicial orders or other causes beyond the reasonable control of the party obligated to perform, then that party’s performance shall be excused. In the event of force majeure, each party shall compensate the other party for non-cancelable and other direct, out-of-pocket expenses incurred on such party’s behalf.

10.3.        Notice

Notice pursuant to this Agreement shall be in writing to the above addresses specified in a Sales Order or to such other address that either party may later designate to the other in accordance with this section. Notice shall be effective on the date sent by fax or e-mail or delivered personally, or three days after the date of deposit with the Canada Postal Service or United States Postal Service, certified mail, return receipt requested.

10.4.        Assignment

The Client may not assign this Agreement, or any part hereof, without the written consent of Push Technologies, which consent or refusal to consent shall be in the sole and absolute discretion of the Push Technologies and may be granted or withheld without any reason given.

10.5.         No Third-Party Beneficiaries; No Affiliate Use.

Except as stated in this Agreement, Push Technologies and the Client intend that this Agreement will not benefit or create any right or cause of action in or on behalf of any person or entity other than the parties. In addition, the Client’s affiliates are not entitled to use the Services under this Agreement and all affiliates must execute its own separate agreement with Push Technologies.

10.6.         Set-Off.

If this Agreement is terminated for any reason and at the time of such termination the Client has outstanding service fees or other amounts of any kind owing to Push Technologies for any services of any kind (due to an non-sufficient funds on a defaulted payroll or otherwise), Push Technologies shall be entitled to apply any funds held on the Client’s behalf in the account described in the applicable Sales Order(s) to settle such outstanding fees.

10.7.         Legal Fees and Cost.

In the event of any dispute arising out of the subject matter of this Agreement, the prevailing party shall recover, in addition to any other damages assessed, its reasonable legal fees and costs incurred in litigating, arbitrating, or otherwise settling or resolving such dispute whether or not an action is brought or prosecuted to judgment.

10.8.        Modification and Waiver.

No modification of this Agreement or any Sales Order is effective unless signed by Push Technologies and the Client, and no waiver of any breach of this Agreement or any Sales Order will be effective unless in writing and signed by an authorized representative of the non-breaching Party. No waiver of any breach of this Agreement or any Sales Order, and no course of dealing between the parties, will be construed as a waiver of any subsequent breach of this Agreement or any Sales Order.

10.9.        Severability

In the event any portion of this Agreement is declared illegal, unenforceable, invalid or void by a court of competent jurisdiction, such portion shall be severed from this Agreement, and the remaining provisions shall remain in full force and effect.

10.10.      Integration

This Agreement, including any and all exhibits, attachments, and appendices, constitutes the entire understanding and agreement between the parties as to all matters contained herein, and supersedes any and all prior agreements, representations and understandings of the parties.

10.11.       Counterparts

This Agreement may be executed in two or more counterparts, which may be transmitted via facsimile or electronically, each of which shall be deemed an original and all of which together shall constitute one instrument.

10.12.       Governing Law

This Agreement shall be governed by British Columbia law and controlling Canada law, without regard to the choice or conflicts of law provisions of any jurisdiction, or the United Nations Convention on the International Sale of Goods, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the province and federal courts located in British Columbia, Canada.

10.13.       Arbitration

Notwithstanding any other provision in this Agreement, and except as otherwise set forth in this section, if either the Client or Push Technologies has any dispute, controversy, or claim, whether founded in contract, tort, statutory, or common law, concerning, arising out of, or relating to this Agreement or the Services, including any claim regarding the applicability, interpretation, scope, or validity of this arbitration clause and/or this Agreement (each of the foregoing, a “Legal Claim”) that cannot be resolved directly between the Client and Push Technologies, then such Legal Claim will be settled by individual (not class or class-wide), confidential, binding arbitration administered by the Canadian Arbitration Association (“CAA”) in accordance with the then-current Arbitration Rules of the CAA (the “CAA Rules”), including any expedited procedures. To initiate an arbitration proceeding, an arbitration claim must be submitted by the claimant (the “Claimant”) to the CAA, and a written Demand for Arbitration must be provided to the other party (the “Opposing Party”), pursuant to the CAA Rules. Arbitration hearings will be held in Vancouver, British Columbia or any other location that is mutually agreed upon by the Client and Push Technologies. A single arbitrator will be mutually selected by Push Technologies and the Client and shall be (i) a practicing laywer licensed to practice law in British Columbia or a retired judge; and (ii) selected from the arbitrators on the CAA’s roster of commercial dispute arbitrators who have a background in payroll, human resources, and/or online commerce law (or if there are no such arbitrators, then from the arbitrators on the CAA’s roster of commercial dispute arbitrators) (collectively, the “Arbitrator Requirements”). If Push Technologies and the Client cannot mutually agree upon an arbitrator within ten (10) days of the Opposing Party’s receipt of the Demand for Arbitration from the Claimant, then the CAA shall appoint a single arbitrator that satisfies the Arbitrator Requirements. The arbitrator will follow the law and will give effect to any applicable statutes of limitation. The prevailing party shall be entitled to an award of the costs and expenses of the arbitration, including reasonable legal fees and expert witness fees. The award rendered by the arbitrator shall be final and binding upon the Client and Push Technologies. A judgment on the award may be entered and enforced in any court of competent jurisdiction. Push Technologies may, in its sole discretion, commence an action in any province or federal court of competent jurisdiction within the City of Vancouver, British Columbia, for any monetary amounts that the Client owes to Push Technologies (each, an “Action”). The Client hereby waives any objection to jurisdiction or venue, or any defense claiming lack of jurisdiction or improper venue, in any Action brought by Push Technologies in such courts.

The Client and Push Technologies agree and acknowledge that this Agreement evidences a transaction involving interstate commerce and that the CAA Arbitration Rules shall govern the interpretation, enforcement, and proceedings pursuant to the arbitration clause in this Agreement. THE CLIENT FURTHER ACKNOWLEDGES, UNDERSTANDS, AND AGREES THAT THE CLIENT AND PUSH TECHNOLOGIES ARE EACH WAIVING THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY AS TO DISPUTES HEREUNDER AND THAT THE CLIENT IS WAIVING ITS RIGHT TO PARTICIPATE IN ANY CLASS ACTION PROCEEDING ARISING FROM THIS AGREEMENT.

10.14.      Additional Documentation.

In order for Push Technologies to perform the Services, it may be necessary for the Client to execute and deliver additional documents (such as reporting agent authorization, client account agreement, limited powers of attorney, etc.) and the Client agrees to execute and deliver such additional documents.

10.15.      Regulatory Notice.

No provincial, state, territorial, or federal agency monitors or assumes any responsibility for the financial solvency of third-party tax filers.

10.16.      Use of Agents.

Push Technologies may designate any agent or subcontractor to perform such tasks and functions to complete any Services covered under this Agreement. However, nothing in the preceding sentence shall relieve Push Technologies from responsibility for performance of its duties under the terms of this Agreement.

10.17.      Entire Understanding.

This Agreement constitutes the exclusive and entire agreement between the parties with respect to its subject matter, and as of the Effective Date, supersedes all prior or contemporaneous agreements, negotiations, representations and proposals of any kind, whether written or oral, either express or implied, relating to this subject matter. This Agreement includes and integrates any properly executed attachments, including the exhibits and any Sales Order or Additional Service Terms.

10.18.      Push Technologies Contracting Entity

Depending on where the Client is domiciled, the Push Technologies entity entering into this Agreement is as follows:

11.            ELECTRONIC SIGNATURES

Push Technologies provides an electronic signature service (the “Electronic Signature Service”) which allows parties to sign documents electronically. Each time that the Client uses the Electronic Signature Service, the Client is expressly (i) affirming that the Client is able to access and view the document (the “Document”) and the Client is electronically signing via the Electronic Signature Service; (ii) consenting to conduct business electronically with respect to the transaction contemplated by the Document; and (iii) agreeing to the use of electronic signatures for the Document.

While many users prefer the convenience of electronic signatures, using the Electronic Signature Service to electronically sign Documents is optional, and the Client can choose to manually sign Documents if the Client prefers. If the Client would like to manually sign a Document, the Client should (i) inform the party that sent the Client the Document of the Client’s decision to manually sign such Document; (ii) make sure that the Client does not electronically sign the Document via the Electronic Signature Service; and (iii) obtain a physical copy of the Document for the Client to sign. Obtaining a physical, non-electronic copy of the Document is the Client’s sole responsibility, and Push Technologies has no responsibility or liability with respect to such matter.

Push Technologies has no responsibility or liability with respect to the content, validity, or enforceability of any Document, nor is it responsible or liable for any matters or disputes arising from the Documents.

Push Technologies makes no representations or warranties regarding the validity or enforceability of electronic documents or electronic signatures. UNDER APPLICABLE PROVINCIAL, STATE AND FEDERAL LAWS, ELECTRONIC SIGNATURES ARE NOT ENFORCEABLE ON SOME DOCUMENTS. IT IS THE CLIENT’S RESPONSIBILITY TO CONSULT WITH A LAWYER OR AN ATTORNEY TO DETERMINE WHETHER A DOCUMENT WILL BE ENFORCEABLE IF IT IS ELECTRONICALLY SIGNED VIA THE ELECTRONIC SIGNATURE SERVICE.

12.         Private Policy

Please refer to Push Technologies’ Privacy Policy for information on how Push Technologies collects, uses, and discloses personally identifiable information from the Client. The Client acknowledges and understands that Push Technologies may collect, use, and disclose the Client’s information pursuant to Push Technologies’ Privacy Policy, as it may be updated from time to time.

13.         Electronic Transmission

This Agreement, and any amendments hereto, by whatever means accepted, shall be treated in all manner and respects as an original contract and shall be considered to have the same binding legal effect as if it were an original signed version thereof, delivered in person. Neither party hereto shall argue that a contract was not formed hereunder based on either (i) the use of electronic means to deliver a signature or to indicate acceptance of this Agreement or (ii) the fact that any signature or acceptance of this Agreement was transmitted or communicated through electronic means; and each party forever waives any related defense.

14.         Contact Information

If the Client has any questions about this Agreement or the Services, the Client may contact Push Technologies at support@pushoperations.com or at 1-800-449-9756.