Mk Financing Master Service Agreement Terms and Conditions

1.Services.  

Subject to Client’s performance of its obligations under the Agreement, MK Financing agrees to provide the MK Financing Wage Access Program Services as an online software service (the “Services”) for access to and use by Client’s authorized and eligible employees located in the states where MK Financing provides the Services, as specified in the applicable Services Order, via an integration with the Multikrd Online Platform located at www.multikrd.com (the “Multikrd Platform”).  Client acknowledges and agrees that Client’s authorized users shall be limited to Client’s active employees who have earned and accrued wages that have not yet been paid to them as of the time of the applicable wage access transaction, and their use of the Services shall be limited to use during the period in which they are employed by Client, unless otherwise approved by MK Financing in writing.  All use of the Services shall be subject to the terms of this Agreement and the MK Financing Terms of Service posted at https://www.multikrd.com/public/legal/mkfinancing/terms-and-conditions (the “MK Financing Terms of Service”) as may be amended from time to time.  The MK Financing Terms of Service are incorporated herein by reference and made a part of the Agreement.  Client and all users of the Services shall be required to agree (and their clicking to agree thereto online shall constitute their agreement) to and comply with the MK Financing Terms of Service and any failure by Client or its authorized users of the Services to comply with the MK Financing Terms of Service or this Agreement shall constitute a material breach of this Agreement by Client.

1.1 Implementation Requirements for Provision of the Services.  

Depending on how Client’s “Employee Data” (as defined below) is provided to MK Financing for use in order to provide the Services, implementation services may be necessary to integrate the Services with Client’s employee data systems.  Employee Data may be exchanged either through secure encrypted data files or through an API integration between the MK Financing Services software and Client’s Employee Data systems, which may be on Client-end systems or Client’s payroll processing service provider systems.  In the event that the parties determine to establish such an API integration, Client grants to MK Financing, and Multikrd a license to use the Client API(s) for the purpose of exchanging Employee Data as necessary for the provision of the Services.  Client agrees to provide cooperation, access to Client’s and/or its payroll processing service provider’s Employee Data systems and assistance as reasonably necessary in order to implement and maintain such integration and/or otherwise provide the Employee Data necessary for the provision of the Services.

1.2 Client Responsibilities With Respect to Provision of Employee Data and Employee Authorization for Payroll Deductions.  

Client shall be solely responsible for providing to MK Financing the necessary employment data pertaining to its employees who use the Services, including the following data:  employee payroll deposit bank account information, paycheck, wage, salary and/or other compensation information, including whether the applicable employee is an hourly, exempt or non-exempt employee, employee pay dates and the amount of earned and accrued wages as of when a wage access transaction is requested, as well as any other related information necessary for MK Financing to provide the Services (collectively, the “Employee Data”).  If the Employee Data is provided via encrypted file transfer, Client shall provide the applicable Employee Data to MK Financing on a daily basis.  If Employee Data is provided via an API integration, Client shall provide access to the Employee Data to MK Financing immediately upon request by MK Financing via the API integration with Client’s or Client’s payroll processing service provider’s Employee Data systems.  In either case, Client shall provide up to date Employee Data expediently in order for MK Financing to process and approve or reject wage access transaction requests in a timely manner.  Client grants to MK Financing a license to receive, retrieve, process, administer, transmit and otherwise use the Employee Data for the purpose of providing the Services, and to Multikrd as necessary for the Services to be provided via the Multikrd Platform. Client represents and warrants that: (i) it owns or otherwise has all necessary rights to provide the Employee Data in accordance with this Agreement, (ii) the use of the Employee Data by MK Financing in accordance with this Agreement, including use by Multikrd as necessary for the Services to be provided via the Multikrd Platform, does not and shall not violate any privacy rights, contract rights, intellectual property rights, rights of publicity or other rights of any employee or other third party, (iii) Client has obtained and/or shall, before providing Employee Data, obtain from all employees that will use the Services the signed written consent and any other authorizations required from each such employee (A) in order to provide all Employee Data to MK Financing for use in connection with the Services, and for Multikrd to make the Services available via the Multikrd Platform, (B) for MK Financing to notify Client regarding the wage access transactions requested and processed for each employee, including the amounts accessed and applicable funds transfer processing charges (including expedited processing charges if expedited processing is requested) and wage access program participation charges in connection with the applicable wage access transaction, and (C) for all wage access transaction amounts including any such charges to be deducted from the applicable employee’s wages and paid to MK Financing.  Client shall maintain all such rights, consents and authorizations in effect at all times while the Services are provided to or used by Client and its employees.  Client shall be solely responsible for ensuring that all Employee Data that is provided in accordance with this Agreement is up to date, complete and accurate in all respects, and shall promptly update the Employee Data and/or otherwise notify MK Financing in the event of any unauthorized access to or use of the Services by Client employees, former employees or other third parties, or any change or anticipated change in the employment status of any Client employee, or any deductions, garnishments, liens or other actions with respect to any Client employee’s wages that would impact MK Financing’s ability to receive repayment of any wage access transaction amounts and/or payment of any other amounts payable to MK Financing related thereto.  Client shall be required to, and shall require that its payroll processing service provider and its authorized users’ maintain their own system security and protect their data, including virus protection, data backup and reasonable security procedures, and maintain all necessary configurations and integrations in order to be able to exchange Employee Data and make the required wage deductions, funds processing charges and program participation charges from Client’s employee wages to repay MK Financing for all wage access transactions made by MK Financing to Client’s employees. 

1.3 Client Responsibilities With Respect to Employee Payroll Deductions.  

Client shall, and/or shall cause its payroll processing service provider to, deduct from Client’s employee’s wages and pay over to MK Financing, all wage access amounts paid by MK Financing to Client’s employees together with all any applicable funds transfer processing charges (including expedited processing charges if expedited processing is requested) and wage access program participation charges in connection with the applicable wage access transaction.  Such deductions from employee wages shall be made from the next wage payments to the applicable employee after the applicable wage access transaction.  If such next wage payment is not in an amount sufficient to repay to MK Financing all amounts due to MK Financing from the applicable employee for wage access transactions made by MK Financing, the outstanding unpaid balance owed to MK Financing shall be deducted from the applicable employee’s next subsequent wage payment(s) until the amounts owed to MK Financing have been paid to MK Financing in full.  Client shall make all necessary payroll processing configuration changes, deduction settings changes and provide all necessary instructions to its payroll/accounting personnel and payroll processing service providers to deduct from the applicable employees’ wages and pay to MK Financing the amounts accessed by MK Financing to Client employees as wage access transactions together with the amounts charged in connection therewith, including the applicable funds transfer processing charges (including expedited processing charges if expedited processing is requested) and wage access program participation charges in connection with the applicable wage access transaction.  MK Financing shall provide its designated account for receipt of such payments from Client. 

1.4 Reporting/Reconciliation of Wage Access Transactions and Repayments.  

On a [daily/weekly] basis, MK Financing shall provide to Client a statement of all wage access transactions completed during the prior [day/week] for Client’s employees, and the repayment amounts owed to MK Financing for each wage access transaction completed during such [day/week], as well as any repayment amounts that are still owed to MK Financing with respect to wage access transactions in prior periods.  Client shall ensure that all such repayment amounts are programmed into its employee payroll processing systems in order to make the necessary payroll deductions from Client employee wages to pay MK Financing for such wage access transactions in its next payroll payments to the applicable employees.  Client shall provide a report to MK Financing when it makes its payroll payments to its employees specifying for each employee that received wage access funds from MK Financing the amount of wages payable to such employee and the amount deducted from such wages to repay MK Financing for the amounts owed by such employee to MK Financing for wage access transactions made prior to such date, and the amount remaining unpaid to MK Financing, if any.  In the event of any discrepancy between the information provided by Client and MK Financing’s records, the parties shall cooperate reasonably to determine the cause for the discrepancy and upon such determination, the parties shall adjust their records accordingly to reconcile any such discrepancies in a timely manner, and in any event before the Client’s then next payroll cycle.

2.  Fees and Billing.

2.1 Fees.  

Repayment of the wage access transaction amounts and payment of the applicable funds transfer processing fees, including any expedited processing fees if expedited processing is requested, and wage access program participation charges for wage access transactions made by MK Financing to Client’s employees will be paid by Client to MK Financing via deductions from the applicable employees’ wages as described in Section 1.3 above, except as otherwise provided in Section 2.2 below.  The amount of such charges shall be specified in the reports provided by MK Financing to Client in accordance with Section 1.4 above.  All amounts paid to MK Financing hereunder are non-refundable unless expressly agreed otherwise.

2.2 Obligation to Pay Wage Access Transactions and Related Charges Not Paid by Client Employees.  

In the event that MK Financing is not paid in full for the amounts owed to it for wage access transactions for Client employees and all funds transfer processing charges and wage access program participation charges through Client’s payroll processing deductions with respect to the applicable Client employees, regardless of the reason for such nonpayment, Client shall be required to pay the unpaid amounts to MK Financing within thirty (30) days after delivery of an invoice for same to Client by MK Financing.  All payments must be made in U.S. Dollars.  Any payments not made on or before the applicable due date will accrue interest at a rate of 1½% per month, or the highest rate allowed by applicable law, whichever is lower.  In the event of non-payment (subject to the cure period in Section 8.2(b)), MK Financing may suspend or terminate access to and/or use or provision of the Services upon notice to Client. MK Financing reserves the right to make changes to fees, charges prices and other billing and payment terms upon providing written notice to Client or by posting same online in the MK Financing Terms of Service.

2.3 Taxes.  

If any federal, state, local or foreign sales, use, property, value-added, excise or gross receipts taxes or any other taxes or other governmental charges of any kind (other than MK Financing’s income taxes) are imposed or are otherwise payable with respect to any access to or use of the Services or any license, software, hardware, software services or other goods or services provided under the Agreement, then such taxes and other charges shall be billed to and paid by Client.  As between MK Financing and Client, Client shall be solely responsible for payment all such taxes and other governmental charges.  Client shall be solely responsible for determining whether, how, when and how much to withhold with respect to its employee wage payments for payroll taxes and any other amounts to be withheld from its employee wage payments with respect to any amounts that are provided to Client’s employees as wage access transactions and the related funds processing, expedited processing, wage access program participation charges and any other amounts payable to MK Financing, and shall indemnify MK Financing and its affiliates (including, without limitation, Multikrd, LLC) with respect to any obligations, claims or liability of any kind with respect thereto.

3. Other Client Obligations.

3.1 User Compliance.  

Client shall: (a) be solely responsible for all of Client’s users’ compliance with the Agreement (including the MK Financing Terms of Service) and shall comply and cause its users to comply with all applicable laws in connection with their use of the Services; (b) be solely responsible for the accuracy, integrity, and legality of Employee Data and of the means by which it acquires and exchanges Employee Data with MK Financing; (c) use the Services only in accordance with the MK Financing Terms of Service and all applicable laws and regulations; and (d) notify MK Financing immediately of any unauthorized use of any password, account, copying or access to the Services.  Any failure of Client’s users to comply with the terms of the Agreement and the MK Financing Terms of Service shall constitute a material breach of the Agreement by Client. Client will maintain industry standard organizational and technical security safeguards for data accessed, stored, collected, provided or processed by Client and Client’s users in connection with the Services.

 

3.2  Prohibited Uses. 

Client shall not, and shall not permit its authorized users to, directly or indirectly: (a) send or store spam, unlawful, infringing, obscene, or libelous material, or Malicious Code (as defined below) through the Services; (b) sublicense, resell, rent, lease, distribute, market, provide service bureau services or other software services to third parties using or based upon the Services, or commercialize or otherwise transfer or provide rights with respect to, or access to or usage of the Services; (c) remove or alter any copyright, trademark or proprietary notice in the Services; (d) reverse engineer, decompile or modify the Services or any component thereof; (e) copy any ideas, features, functions or graphics of the Services or create a product or service using the same or similar ideas, features, functions or graphics as those in the Services or otherwise use or cause to be used the Services for gathering of information to develop or provide services that compete with or are a substitute for the Services; (f) conduct automated functionality tests or load tests on the Services; (g) create Internet links to the Services; or (h) “frame,” “fork” or “mirror” any part of the Services on any other device.  MK Financing may terminate this Agreement immediately if Client or its authorized users violate this Section 3.2. “Malicious Code” means viruses, worms, time bombs, Trojan horses, ransomware and/or other harmful or malicious code, files, scripts, agents, or programs.  Client agrees that MK Financing shall have the right to suspend, refuse or cease providing the Services to any user at any time and/or with respect to any particular wage access transaction request as it determines in its sole and absolute discretion.

3.3  Exclusions from the Services.  

Unless expressly agreed to otherwise by MK Financing in writing, the Services do not include, and MK Financing shall not be responsible for, the following in the provision of the Services:  (a) the provision of Client or User-end hardware or non-MK Financing software required for access to and use of the Services via the Internet, or any services required to manage such hardware and non-MK Financing software; (b) services to modify or extend the scope of the Services; (c) assistance to resolve Services problems or errors that are caused by Client-end systems, hardware, software or Internet connectivity; (d) modification to the Services configuration, including without limitation, the following: (i) modification to the connectivity configuration for on-premise and cloud-based applications, including without limitation, changing the IP address or application credentials; (ii) modification to Client’s existing policies and roles for who has access to each resource, password rules or approvers; (iii) account reconciliation for new groups of users who are being added to the Services; (iv) adding a new connected system or application to the Services; and (v) modifying the configuration of the user interface, including the appearance, text, branding or other features. 

4.  Confidential Information.

4.1 Confidential Information.  

Each party acknowledges that it will have access to certain confidential information of the other party concerning the other party’s business, plans, customers, technology, products and services, and including the terms and conditions of this Agreement (collectively, “Confidential Information”). For avoidance of doubt, the Services and the software and technology, know-how, trade secrets and proprietary information used and/or embodied therein, and any analytics or work product created by MK Financing resulting therefrom is and shall be Confidential Information belonging to MK Financing.  As between Client and MK Financing, the Employee Data is Confidential Information belonging to Client.  Each party shall not use in any way, for its own account or the account of any third party, except as expressly permitted by this Agreement or its privacy policy, nor disclose to any third party (except as required by law or as necessary to provide the Services), any of the other party’s Confidential Information and shall take reasonable precautions to protect the confidentiality of such information. 

4.2 Exceptions.  

Information will not be deemed Confidential Information if such information: (a) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (b) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party that is known by the receiving party; (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or (d) is independently developed by the receiving party without use of the disclosing party’s Confidential Information.

5. Proprietary Rights

5.1 MK Financing Intellectual Property. 

MK Financing and/or its licensors own the “MK Financing Intellectual Property” (as defined below) in and to the Services and the software and technology used and/or embodied therein, and, in each case, any modifications, enhancements or improvements thereto created by or for MK Financing. This Agreement does not convey or transfer any ownership rights in any MK Financing Intellectual Property or any software or technology used and/or embodied in the Services. The MK Financing name, logo, and trade names are trademarks of MK Financing and no right is granted to use them except as expressly granted herein.  MK Financing reserves all rights, title, and interest in and to the Services, including, without limitation, all software (including object code and source code), algorithms, databases, inventions, works of authorship, trade secrets and other MK Financing Intellectual Property. “MK Financing Intellectual Property” means any patents and patent applications, copyrights, trademarks, service marks and any applications or registrations for same, trade names, domain name rights, trade secret rights, and all other intellectual property rights with respect to MK Financing products, Services, software or other works of authorship and/or other MK Financing assets. Client acknowledges and agrees that, except for the online access and usage authorization provided by MK Financing to Client users with respect to the Services specified in the Services Order (subject to the MK Financing Terms of Service), it shall not acquire or otherwise have any right, title or interest in and to any of the Services or any other software or other work of authorship, invention, concept, process, trade secret, proprietary information, trademark, service mark or other intellectual property or work product developed by MK Financing independently or by MK Financing with Client’s input (“MK Financing Work Product”). Under no circumstances shall the disclosure of any such MK Financing Work Product or delivery of any copy of any MK Financing Work Product by MK Financing to Client be construed as a transfer of title to that copy or a transfer of any right, title or interest in such MK Financing Work Product, except for the usage authorization granted to Client as set forth in the Agreement.  Client is not authorized to, and shall not undertake, to create any system, service, product, software or other work of authorship, invention, concept, process, trade secret, proprietary information or other intellectual property based upon, copying or otherwise including or using functions, features, style, form or other elements of the Services or other MK Financing Intellectual Property. To the extent that, notwithstanding the foregoing, Client employees or contractors conceive of, develop or otherwise create, whether separately or jointly with MK Financing, any such software or other work of authorship, invention, concept, process, trade secret, proprietary information, data, or other intellectual property, or work product based upon, copying or otherwise including or using functions, features, style, form or other elements of the Services or other MK Financing Intellectual Property (“Client Work Product”) then Client shall assign and hereby does assign, and shall cause its employees and contractors to assign, to MK Financing all rights, title and interests with respect to such Client Work Product, and, to the extent necessary for Client to use the Services as contemplated hereunder, such Client Work Product shall be deemed to form part of the Services or other MK Financing software provided for use as a service to Client subject to the terms and conditions of the Agreement.  It is recognized and understood that MK Financing may develop new software or modify its existing software based upon the suggestions and recommendations provided by Client, and that except as otherwise expressly agreed to by MK Financing in writing signed by a duly authorized officer of MK Financing, Client shall have no right, claim or interest in such new or modified software developed by MK Financing.

5.2   Ownership of Employee Data; License of Client Data for Analytical Purposes; Ownership of Analytics Data.  

Client shall own the intellectual property rights, if any, in and to the Employee Data.  Client hereby grants to MK Financing an irrevocable, perpetual, worldwide, royalty-free, fully paid transferable and sublicensable license and right to use Employee Data and Client employee Services usage data for analytical purposes.  MK Financing may also use Client employee personally identifiable information in accordance with the MK Financing Privacy Policy which is posted online at https://www.multikrd.com/public/legal/mkfinancing/privacy-policy, as may be amended or modified from time to time, and Client’s employees are required to agree to and consent to said Privacy Policy as a condition to their use of the Services.  MK Financing shall own and have the right to gather, retrieve, compile, store, retain, use, sell, license, transfer or otherwise exploit all information that is not personally identifiable information for research, quality control, product development and refinement, commercial and other purposes as determined by MK Financing without a duty to account to or obtain consent from Client or Client’s authorized users or any third party. As used herein, “personally identifiable information” is any data element or collection of data elements that can be associated with a specific individual, whether by itself or in combination with other information. MK Financing may use such information as may be reasonably necessary in connection with performing, providing, developing, enhancing, supporting, and maintaining the Services; and (ii) in connection with the creation of any information or data derived from use of the Services (including, without limitation, metrics and analytics related to such use), which does not identify a specific person, including as may be required to develop, deliver and provide ongoing innovation to the Services. MK Financing shall own all intellectual property rights with respect to any analytics and analytical data, work of authorship or other work product created or otherwise acquired based on analysis of Client data by MK Financing or its contractors.

5.3  Suggestions.  

Client hereby grants and shall cause its users to grant to MK Financing an irrevocable, perpetual, worldwide, royalty-free, fully paid transferable and sublicensable license and right to use, copy, modify, or distribute, including by incorporating into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Client, including Client’s authorized users, relating to the Services, and MK Financing shall exclusively own all intellectual property rights in and to all software, technology, inventions, works of authorship and other developments created by MK Financing based on same without any duty to compensate or otherwise account to Client or its users with respect thereto.

6. Representations and Warranties.

6.1  Mutual Representations and Warranties.

Each party represents and warrants to the other party that it has all necessary power, right and authority to enter into this Agreement and perform its obligations hereunder, and that its entering into this Agreement does not violate the terms of any agreement between it and any third party. 

6.2 Client Representations and Warranties.  

In addition to Client’s representations, warranties and obligation elsewhere in this Agreement, Client represents, warrants and covenants to MK Financing that:  (i) Client owns all right, title and interest in and to, and/or has full and sufficient authority to use and provide access to MK Financing to all Client systems, software, materials or data (including all Employee Data) furnished by Client or its authorized users as contemplated for the provision of the Services; (ii) Client will secure and comply with the terms and conditions of any licensing or other agreements which govern the use of any third party software, data or other materials or intellectual property used in or forming part of Client systems, software, materials or data; (iii) Client’s systems, software, materials and/or data (including all Employee Data) do not and will not infringe the patent, copyright, trademark or other intellectual property rights of any party, or constitute libel, slander, defamation, invasion of privacy, or violation of any right of publicity or any other third party rights; (iv) Client has or will obtain all necessary consents, permissions, clearances, authorizations and waivers for the access to and use of the Client’s systems, software, materials and data as contemplated hereunder, including all of the foregoing required to transfer such data from Client and/or or its authorized users’ or other systems to and from MK Financing systems in connection with providing the Services and all consents, permissions and authorizations from its employees to provide their Employee Data and any other employee-related data to MK Financing, and to deduct from their salary, wages, and/or other compensation the amounts provided to them as wage access transactions together with any processing fees, wage access program participation charges and/or other charges related thereto; and (v) Client is presently in compliance with, has complied and will comply with all laws, rules, regulations and other legal requirements in the conduct of its business and with respect to Client’s use of the Services and Client’s systems, software, materials or data, including all Employee Data.

6.3  MK Financing Representations and Warranties.  

MK Financing represents and warrants that the Services shall substantially conform to the applicable descriptions and specifications for same as described herein or in the MK Financing Terms of Service.  MK Financing does not warrant the correctness, completeness, merchantability or fitness for a particular purpose of any such data provided in connection with the Services, and Client shall indemnify, defend and hold the MK Financing Indemnitees harmless from any and all claims arising out of such data or its use.  Client shall be solely responsible for the accuracy and completeness of all Employee Data and any other data provided by Client or its authorized users in connection with the Services.  Client acknowledges and agrees that its sole remedy for breach of the foregoing representations and warranties shall be support services to correct nonconformities or a refund of amounts paid for the nonconforming Services.

 

6.4  Indemnification.  

Client shall indemnify and defend MK Financing, its affiliates (including, without limitation, Multikrd, LLC), and its and their respective employees, officers, managers, directors, shareholders, agents, contractors and representatives (collectively, the “MK Financing Indemnitees”) and hold the MK Financing Indemnitees harmless from and against any and judgments, losses, costs (including court costs and reasonable attorneys’ fees), damages, settlements, suits, actions, expenses, liabilities, taxes, fines and claims asserted against, sustained, or suffered by or involving the MK Financing Indemnitees arising out of or resulting from (i) any breach by Client of its representations, warranties or obligations hereunder; and/or (ii) any claims made by Client’s employees, any other authorized users or other third parties arising out of Client’s or its employees or other authorized users use of or access to the Services provided by MK Financing in accordance with this Agreement.  In the event of any breach or anticipated breach, of any of Client’s warranties herein, in addition to any other remedies available at law or in equity, MK Financing will have the right to immediately, in MK Financing’s sole discretion, suspend access to, use or provision of the Services if deemed reasonably necessary by MK Financing to prevent or mitigate any liability for MK Financing.

 

6.5 Warranties and Disclaimers by MK Financing.  

EXCEPT AS EXPRESSLY PROVIDED OTHERWISE HEREIN, THE SERVICES ARE PROVIDED “AS IS,” AND CLIENT’S AND ITS AUTHORIZED USERS’ USE OF THE SERVICES IS AT ITS/THEIR OWN RISK.  MK FINANCING DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.  MK FINANCING DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.

7.  Limitations of Liability.

7.1 Exclusions.  

MK FINANCING WILL NOT BE LIABLE TO THE CLIENT, ITS AUTHORIZED USERS OR ANY THIRD PARTY FOR ANY LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, LOSS OF DATA, OR INTERRUPTION OF BUSINESS, EVEN IF MK FINANCING WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.

7.2 Maximum Liability.  

MK FINANCING’S MAXIMUM AGGREGATE LIABILITY FOR ANY CLAIMS RELATED TO OR IN CONNECTION WITH THIS AGREEMENT AND/OR THE SERVICES WILL BE LIMITED TO THE TOTAL AMOUNT PAID TO MK FINANCING IN CONNECTION WITH THE WAGE ACCESS TRANSACTION(S) THAT IS/ARE THE SUBJECT OF THE APPLICABLE CLAIM(S), OR THE TOTAL AMOUNT OF WAGE ACCESS PROGRAM PARTICIPATION CHARGES PAID TO MK FINANCING FOR THE SERVICES PROVIDED IN THE THEN PRIOR MONTH, WHICHEVER IS LESS.

7.3  Basis of the Bargain; Failure of Essential Purpose.  

Client acknowledges that MK Financing has set its terms and charges and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the parties.  The parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed of their essential purpose.

8. Term and Termination.

8.1  Term.  This Agreement will be effective commencing on the Effective Date, and continue until the expiration of the last terminated or expiring Services Order unless terminated sooner.

8.2  Termination.

(a)   For Convenience.  
MK Financing may terminate this Agreement and cease providing the Services at any time upon no less than two (2) month’s prior written notice for any reason or no reason.

(b)  For Cause.  
Either party will have the right to terminate this Agreement and/or the applicable Services Order, if the other party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after delivery of written notice of the same by the non-breaching party to the other party. Either party may also terminate this Agreement upon providing written notice thereof to the other party if: (i) the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; (ii) the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing; (iii) or MK Financing determines in its sole and absolute discretion that the continued provision of the Services would violate any applicable laws or other legal requirements.

8.3 Effect of Termination.  

Upon the effective date of expiration or termination of this Agreement: (a) MK Financing may immediately cease providing Services; (b) any and all payment obligations of Client under this Agreement will become due immediately; (c) within thirty (30) days after such expiration or termination, each party shall return all Confidential Information of the other party in its possession at the time of expiration or termination and shall not make or retain any copies of such Confidential Information except as required to comply with any applicable legal or accounting record keeping requirements.

8.4  Survival.

The following provisions will survive any expiration or termination of the Agreement:  Sections 1.3, 2.2, 2.3, 3.2, 4-7, 8.3, 8.4 and 9.

9. Miscellaneous Provisions.

9.1 Force Majeure.  

Except for the obligation to pay amounts payable by Client to MK Financing hereunder, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war, acts of God, epidemics, pandemics or government ordered shutdowns, earthquakes, hurricanes, tornadoes or other windstorms, other storms or other elements of nature, embargo, riot, protests, civil disturbances, looting, sabotage, terrorism, labor shortage or dispute or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, governmental act or failure of the Internet, provided that the delayed party: (a) gives the other party prompt notice of such cause, and (b) uses its commercially reasonable efforts to correct promptly such failure or delay in performance.

9.2 Government Regulations.  

Client shall not export, re-export, transfer, or make available, whether directly or indirectly, any Service, regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction Client operates or does business.

9.3 Governing Law; Dispute Resolution, Severability; Waiver.  

The Agreement shall be governed by and construed in accordance with the laws of the State of Texas without application of conflicts of laws rules or principles. Any dispute relating to the terms, interpretation or performance of the Agreement (other than claims for injunctive relief or other equitable remedies) will be submitted at the request of either party to binding arbitration. Arbitration will be conducted in Houston, Texas, under the Commercial Arbitration Rules and procedures of the American Arbitration Association. The parties will either select one mutually acceptable arbitrator or, if the parties do not agree to a single arbitrator, each party shall select one arbitrator and the two arbitrators selected by the parties shall select a third arbitrator, and the arbitration shall be held before the three arbitrators, and shall be decided by vote of the three arbitrators with a vote of the majority of the arbitrators required for a decision.  Any claims for injunctive or other equitable relief shall be brought and heard in the state or federal courts located in Houston, Texas, and Client consents to such venue and personal jurisdiction therein for any such proceedings. CLIENT HEREBY IRREVOCABLY WAIVES THE RIGHT TO A JURY TRIAL AS WELL AS THE RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM AGAINST MK FINANCING, INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. A printed version of the Agreement and of any notice given in electronic form shall be admissible in any legal proceedings based upon or relating to the Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. In the event any provision of this Agreement is held by a court or arbitrator to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect.  The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.

9.4 Assignment.  

Client may not assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of MK Financing.  Any attempted assignment or delegation without such consent will be void.  MK Financing may assign this Agreement in whole or part to an affiliate or in connection with a sale of all or substantially all of its assets.  This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.

9.5  Notices.

Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, or mailed by registered or certified mail, return receipt requested; postage prepaid to the address for the applicable party indicated in the first page of the Agreement, or at such other address as may hereafter be furnished in writing by either party hereto to the other.  Such notice will be deemed to have been given as of the date it is delivered, mailed or sent, whichever is earlier.  Notwithstanding the above, notices may be sent by email from MK Financing to Client or may be posted by MK Financing via the Services online on Client’s account and shall be effective upon sending or posting.

9.6 Relationship of Parties.  

MK Financing and Client are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between MK Financing and Client.  Neither MK Financing nor Client will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein.

9.7 MK Financing Wage Access Program Services Are Not Provided by Multikrd, LLC.  

Although the MK Financing wage access program Services may be provided via an integration of such Services with the Multikrd Platform, Client acknowledges and agrees that Multikrd, LLC is not responsible for and shall have no liability with respect to the wage access Services or any issues or claims related thereto, and Client irrevocably agrees not to assert any claims against Multikrd related to the wage access Services.  Client acknowledges and agrees that the employee discount benefit program services made available via the Multikrd Platform are not provided by MK Financing and are provided by Multikrd, LLC. 

9.8 U.S. Government-Restricted Rights.  

The software and accompanying documentation are deemed to be “commercial computer Software” and “commercial computer Software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable.  Any use, modification, reproduction release, performance, display or disclosure of the Software and accompanying documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

9.9 Entire Agreement; Counterparts.  

This Agreement, including the MK Financing Terms of Service and all of the other documents incorporated herein by reference, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter.  In the event of any conflict or inconsistency between these Terms and Conditions and the MK Financing Terms of Service, the terms that provide the greater rights and protections for MK Financing shall control.  This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument.