TERMS AND CONDITIONS
- Subject to Client’s payment of the applicable fees and charges and performance of its obligations under the Agreement, Multikrd agrees to provide the Multikrd Platform Services, Implementation Services, Training Services and Professional Services (each as defined below) (the Multikrd Platform Services, Implementation Services, Training Services and Professional Services are sometimes hereinafter collectively referred to as the “Services”).
1.1 Multikrd Platform Services. Subject to payment of the applicable fees specified in the Services Order (the “Subscription Fees”) and Client’s compliance the terms and conditions of this Agreement, Multikrd shall provide to Client, for use by the Client’s authorized users as specified in the applicable Services Order, access to and use of the software services described in the applicable Services Order (the “Multikrd Platform Services”). Client acknowledges and agrees that Client’s authorized users shall be limited to Client’s active employees and their use of the Multikrd Platform Services shall be limited to use during the period in which they are employed by Client, unless otherwise approved by Multikrd in writing.
1.2 Implementation Services. Multikrd shall provide the implementation services (“Implementation Services”) as specified in the applicable Services Order in accordance with the statement(s) of work (each a “Statement of Work”) accompanying the applicable Services Order.
1.3. Training Services. Multikrd shall provide the training services (“Training Services”) relating to access and use of the Multikrd Platform Services specified in the applicable Services Order and Statement of Work. Training Services shall be provided remotely via telephone or remote access to Client’s and/or its authorized users’ computers during Multikrd’s regular business hours unless otherwise specified in the applicable Services Order.
- Exclusions from the Service. The Services do not include, and Multikrd shall not be responsible for, the following in the provision of the Multikrd Platform Services, other than the Implementation Services described in the Services Order(s) and Statement(s) of Work to the Agreement: (a) the provision of Client or User-end hardware or non-Multikrd software required for access to and use of the Multikrd Platform Services via the Internet, or any Professional Services required to manage such hardware and non-Multikrd software; (b) services to modify or extend the scope of the Multikrd Platform Services; (c) assistance to resolve Multikrd Platform Services problems or errors that are not within the scope of the support services as described in Multikrd’s standard support terms; (d) modification to the Multikrd Platform 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 Multikrd Platform Services; (iv) adding a new connected system or application to the Multikrd Platform Services; and (v) modifying the configuration of the user interface, including the appearance, text, branding or other features.
- Additional Multikrd Platform Services, Professional Services and/or Authorized Users. Client may purchase additional Multikrd Platform Services or Professional Services and/or add authorized users for use of the Multikrd Platform Services under the terms of the Agreement at then current pricing or such other pricing as may be mutually agreed to by Multikrd and Client by contacting Multikrd and completing a Services Order or amendment to Services Order and paying the applicable fees and charges.
- Wage Access Services Provided Separately by MK Financing, LLC. Client acknowledges and agrees that the wage access services made available via the Multikrd Platform Services are not provided by Multikrd and are provided by MK Financing, LLC, and that in order to activate and make available the wage access services for use by Client’s employees, Client is required to enter into a separate agreement with MK Financing, LLC. Although the wage access services may be provided via an integration of such services with the Multikrd Platform Services, Client acknowledges and agrees that Multikrd 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.
- Fees and Billing.
- Client shall pay all fees specified in the Services Order in accordance with the payment terms set forth herein unless other payment terms are specified in the applicable Services Order. All fees are non-refundable unless expressly agreed otherwise.
- Billing and Payment Terms. Unless otherwise specified in the applicable Services Order, all upfront fees are due on the Effective Date, Subscription Fees are invoiced, payable and due in advance of the applicable month or year, as applicable, and other fees shall be invoiced in arrears at the beginning of every calendar month and shall be due within thirty (30) days after the invoice date. All payments must be made in U.S. Dollars. Late payments hereunder 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)), Multikrd may suspend or terminate access to and/or use or provision of the Services upon notice to Client. Multikrd reserves the right to make changes to fees, prices and other billing and payment terms upon at least sixty (60) days’ written notice.
- 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 Multikrd’s income taxes) are imposed or are otherwise payable with respect to any access to or use of the Multikrd Platform Services or any license, software, hardware or other goods or Implementation, Training, support, or other Professional Services provided under the Agreement, then such taxes and other charges shall be billed to and paid by Client. If Client is exempt from payment of any taxes, Client is responsible for providing Multikrd with a valid tax exemption or direct pay certificate for same; otherwise Client remains responsible for all such taxes and other governmental charges.
- Wage Access Payroll Withholding and other Taxes or Amounts to be Withheld from Employee Payroll Related to Wage Access. Client shall be solely responsible for determining whether, how, when and how much to withhold for payroll taxes and any other amounts to be withheld with respect to any amounts that are paid to Client’s employees via wage access transactions, and shall indemnify Multikrd and MK Financing with respect to any obligations, claims or liability of any kind with respect thereto.
- Client’s Obligations.
3.2 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 through the Multikrd Platform Services; (b) sublicense, resell, rent, lease, distribute, market, provide service bureau services or other software services to third parties using or based upon the Multikrd Platform Services, or commercialize or otherwise transfer or provide rights with respect to, or access to or usage of the Multikrd Platform Services; (c) remove or alter any copyright, trademark or proprietary notice in the Multikrd Platform Services; (d) reverse engineer, decompile or modify the Multikrd Platform Services or any component thereof; (e) copy any ideas, features, functions or graphics of the Multikrd Platform Services or create a product or service using the same or similar ideas, features, functions or graphics as those in the Multikrd Platform Services; (f) conduct automated functionality tests or load tests on the Multikrd Platform Services; (g) create Internet links to the Multikrd Platform Services; or (h) “frame,” “fork” or “mirror” any part of the Multikrd Platform Services on any other device. Multikrd 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 and other harmful or malicious code, files, scripts, agents, or programs.
- Confidential Information.
- 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 Multikrd resulting therefrom is and shall be Confidential Information belonging to Multikrd. 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, nor disclose to any third party (except as required by law or to that party’s attorneys, accountants and other advisors as reasonably necessary), any of the other party’s Confidential Information and shall take reasonable precautions to protect the confidentiality of such information.
- 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; (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.
- Proprietary Rights
5.1 Multikrd Intellectual Property. Multikrd and/or its licensors own the “Multikrd 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 Multikrd. This Agreement does not convey or transfer any ownership rights in any Multikrd Intellectual Property or any software or technology used and/or embodied in the Services. The Multikrd name, logo, and trade names are trademarks of Multikrd and no right is granted to use them except as expressly granted herein. Multikrd 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 Multikrd Intellectual Property. “Multikrd 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 Multikrd products, Services, software or other works of authorship and/or other Multikrd assets. Client acknowledges and agrees that, except for the online access and usage authorization provided by Multikrd to Client with respect to the Multikrd Platform Services specified in the Services Order, 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 Multikrd independently or by Multikrd with Client’s input (“Multikrd Work Product”). Under no circumstances shall the disclosure of any such Multikrd Work Product or delivery of any copy of any Multikrd Work Product by Multikrd to Client be construed as a transfer of title to that copy or a transfer of any right, title or interest in such Multikrd 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 Multikrd Platform Services or other Multikrd Intellectual Property. To the extent that, notwithstanding the foregoing, Client employees or contractors conceive of, develop or otherwise create, whether separately or jointly with Multikrd, 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 Multikrd Platform Services or other Multikrd Intellectual Property (“Client Work Product”) then Client shall assign and hereby does assign, and shall cause its employees and contractors to assign, to Multikrd all rights, title and interests with respect to such Client Work Product, and, to the extent necessary for Client to use the Multikrd Platform Services as contemplated hereunder, such Client Work Product shall be deemed to form part of the Multikrd Platform Services or other Multikrd software provided for use as a service to Client subject to the terms and conditions of the Agreement. It is recognized and understood that Multikrd 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 Multikrd in writing signed by a duly authorized officer of Multikrd, Client shall have no right, claim or interest in such new or modified software developed by Multikrd.
5.3 Suggestions. Client hereby grants and shall cause its users to grant to Multikrd 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 Multikrd Platform Services any suggestions, enhancement requests, recommendations or other feedback provided by Client, including Client’s authorized users, relating to the Multikrd Platform Services, and shall exclusively own all intellectual property rights in and to all software, technology, inventions, works of authorship and other developments created by Multikrd based on same.
- Representations and Warranties.
- 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.
- Client Representations and Warranties. Client represents, warrants and covenants to Multikrd 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 Multikrd to all Client systems, software, materials or data furnished by Client or its authorized users as contemplated for the provision of the Services; (ii) Client will procure, 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 the Client systems, software, materials or data; (iii) the Client’s systems, software, materials and/or 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 (including any of the foregoing required from its employees and other authorized users) 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 and use data from Client and/or or its authorized users’ or other systems to and from Multikrd systems in connection with providing the Multikrd Platform Services and all consents, permissions and authorizations from its employees to provide their employment, salary, wages and other compensation information, and their payroll-related information to Multikrd and MK Financing, LLC, and to deduct from their salary, wages, and/or other compensation the amounts paid to them by MK Financing, LLC via wage access transactions together with any funds transfer processing charges and wage access program participation charges and any 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 Multikrd Platform Services and Client’s systems, software, materials or data.
6.3 Multikrd Representations and Warranties. Multikrd represents and warrants that the Services shall substantially conform to the applicable descriptions and specifications for same set forth in the documentation for same and that Implementation Services and other Professional Services that it provides shall be performed in a professional and workmanlike manner. Client acknowledges and agrees that its sole remedy for breach of the foregoing representations and warranties shall be support services provided by Multikrd in accordance with Multikrd’s standard support services terms.
6.4 Indemnification; Breach of Warranties. Client shall indemnify and defend Multikrd, its affiliates and their respective employees, officers, managers, directors, shareholders, agents, contractors and representatives (collectively, the “Multikrd Indemnitees”) and hold the Multikrd 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 Multikrd 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 and other authorized users’ use of or access to the Multikrd Platform Services or related to any other Services provided by Multikrd or MK Financing. In the event of any breach (subject to the cure period in section 8.2(b)), or reasonably anticipated breach, of any of Client’s warranties herein, in addition to any other remedies available at law or in equity, Multikrd will have the right to immediately, in Multikrd’s sole discretion, suspend access to, use or provision of the MultiKrd Platform Services and/or any other Services if deemed reasonably necessary by Multikrd to prevent any liability for Multikrd. Client shall be solely responsible for the accuracy and completeness of all data provided by Client or its authorized users in connection with the Services. Multikrd 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 Multikrd Indemnitees harmless from any and all claims arising out of such data or its use.
- Warranties and Disclaimers by Multikrd. 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. MULTIKRD 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. MULTIKRD DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
- Limitations of Liability.
- MULTIKRD WILL NOT BE LIABLE TO THE CLIENT, ITS EMPLOYEES OR ANY OTHER 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 MULTIKRD WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
- Maximum Liability. MULTIKRD’S MAXIMUM AGGREGATE LIABILITY RELATED TO OR IN CONNECTION WITH THIS AGREEMENT AND/OR THE SERVICES WILL BE LIMITED TO THE TOTAL AMOUNT PAID BY CLIENT TO MULTIKRD HEREUNDER FOR THE PRIOR MONTHLY PERIOD.
- Basis of the Bargain; Failure of Essential Purpose. Client acknowledges that Multikrd has set its prices 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.
- Term and Termination.
- 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.
- For Convenience. Multikrd may terminate this Agreement upon no less than two month’s written notice for any reason or no reason.
- For Cause. Either party will have the right to terminate this Agreement, 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 receipt of written notice of the same, except in the case of Client’s failure to pay fees, which must be cured within fifteen (15) days after receipt of written notice from Multikrd. 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; or (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.
- Effect of Termination. Upon the effective date of expiration or termination of this Agreement: (a) Multikrd may immediately cease providing Services; however, upon Client’s request Multikrd shall use reasonable efforts to assist Client in transferring Client’s data to Client or another service provider (such services to be subject to Multikrd’s customary fees on a time and materials basis unless otherwise agreed to by the parties); (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 requirement. Client shall be required to pay the Subscription Fees for the subscription period that would remain had the Agreement not been terminated, unless the Agreement is terminated by Client based on an uncured material breach by Multikrd or by Multikrd for convenience.
- The following provisions will survive any expiration or termination of the Agreement: Sections 1.7, 2, 3.2, 4-7, 8.3, 8.4 and 9.
- Miscellaneous provisions.
- Force Majeure. Except for the obligation to pay subscription fees and other amounts payable by Client to Multikrd 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 act 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, 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 reasonable commercial efforts to correct promptly such failure or delay in performance.
- Government Regulations. Client shall not export, re-export, transfer, or make available, whether directly or indirectly, any 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.
- 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 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 MULTIKRD, 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.
- 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 Multikrd. Any attempted assignment or delegation without such consent will be void. Multikrd 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.
- 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 Multikrd to Client or may be posted by Multikrd via the Services online on Client’s account and shall be effective upon sending or posting.
- Relationship of Parties. Multikrd and Client are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between Multikrd and Client. Neither Multikrd 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.
- 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.