BY COMPLETING THE FORM LOCATED AT ERGPAYROLL.COM/TERMS-AND-CONDITIONS, YOU (EITHER AS AN INDIVIDUAL OR AN ENTITY) AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS SOLUTION AGREEMENT (the “AGREEMENT”) WITH EXECUTIVE RESOURCE GROUP, LLC (“ERG”). IF YOU DO NOT AGREE TO THIS AGREEMENT, DO NOT COMPLETE THE FORM.
THIS AGREEMENT is made and entered into the day this form is completed, by and between Executive Resource Group, LLC (hereinafter referred to as ERG) a South Carolina Limited Liability Company having its principal place of business at 810 Dutch Square Blvd, Suite 217, and the Company completing the form (hereinafter referred to as “Client”).
This Agreement contains the terms and conditions relevant to the services that ERG will administer to Client, including payroll processing, payroll tax service and other related payroll services (the “Service”). All services provided both by employees of ERG and through electronic communications, the payroll Internet Websites or “apps” are covered in said terms.
Provider will provide Client the Services agreed upon in accordance with this Agreement. The terms and conditions of this Agreement will also apply to any additional services which Client employs ERG to perform unless otherwise stated. A minimum of ten (10) business days before the first payroll processing date, Client will provide all required executed documents to Provider, which documents shall include any federal, state or local powers of attorney required by Provider, Client account information and any additional information requested by Provider. Prior to the first payroll processing, Client will complete and execute any renewals, amendments or replacements of the aforementioned documents which Provider deems necessary. Client acknowledges that each of the Services may have separate Service Effective Dates. Until the Service Effective Date, Client will continue to provide for itself the Services requested of ERG. ERG assumes no responsibility for Services prior to the Service Effective Date.
This Agreement shall remain in effect for a 12-month term effective on the date of the “Kickoff Meeting”. Client’s failure to comply with the terms of this Agreement shall allow Provider to immediately terminate this Agreement in its sole discretion and releases ERG of liability for its performance under this Agreement. If Client terminates this agreement prior to the end of the 12 month period, the Client will be liable for a “buyout” equal to six months of service fees that will be calculated using the average of the two months prior to termination.
Prior to Services being rendered Client must provide accurate wage and payroll information to ERG during the implementation period. Client acknowledges that ERG will not be responsible for performing the payroll tax portion of the Service including, without limitation, depositing of payroll taxes and filing of payroll tax returns until Client’s first payroll to be processed with ERG (“First Payroll Processing”). Client agrees that it will make all payroll tax deposits for liabilities incurred prior to Client’s First Payroll Processing unless otherwise agreed to, in writing, by ERG. Client further acknowledges that ERG will not be liable for Client’s failure to pay any required payroll tax liabilities or file required payroll tax returns for periods prior to Client’s First Payroll Processing. Client further agrees to indemnify and hold ERG harmless from any such liability. ERG’s sole liability and Client’s sole remedy for ERG’s negligent failure to perform the payroll tax portion of the Service shall be (i) ERG will remit the payroll taxes received from Client to the appropriate taxing authority and (ii) ERG will reimburse Client or pay directly to the appropriate taxing authority any penalties resulting from such negligent error or omission by ERG.
REMIT REIMBURSEMENT AMOUNT
Client agrees to remit funds to ERG fulfilling the amount due to pay Client’s employees, remit taxes, or pay garnishments (“Reimbursement Amounts”) through an Electronic Funds Transfer (EFT), or such other payment method as required by ERG in advance of ERG making the payment.
PAYMENT OF FEES
Client agrees to pay ERG fees for services and delivery charges, and if the data submitted by the Client for processing is incorrect, incomplete, or not in proper form, then the Client agrees to pay ERG its standard rate then in effect for any additional work performed to correct such data for processing (collectively “Amounts Due”) which will be charged to Client’s account through an EFT along with the reimbursement amounts. ERG fees and delivery charges are subject to change, in ERG’s sole discretion, on written notice. Client agrees to promptly reimburse ERG for all advances or overpayments made by ERG. Bills will be due in full upon presentation. Overdue account will accrue interest at the highest Prime Rate listed under Money Rates in the Wall Street Journal. In the event the account is placed for collection, reasonable attorney’s fees and costs will be added to the account balance. ERG reserves the right to withhold any payments provided pursuant to this Agreement and any or all work in process or records in its possession in the event of Client’s failure to make any payments hereunder. As additional consideration for performance of Services under this Agreement, the parties understand that ERG has the use of funds held by ERG in a separate escrow or custodial account pending final payment of items to employees, taxing authorities or others. Client waives any right to interest that may accrue on any amounts received by ERG. ERG shall utilize the services provided by NatPay for the purpose of transferring funds through the Automated Clearing House (ACH). In accordance with the rules of the National Automated Clearing House Association (NACHA), the laws of the State of South Carolina, and all applicable federal rules and regulations for various purposes that include, but are not limited to: direct deposit distribution of the Client’s employee payroll funds, flexible benefits plans, taxes, child support, or any other applicable reason that the Client may desire to transfer funds electronically via ACH.
If Client does not have sufficient funds in Client’s Account to pay Reimbursement Amounts, Amounts Due or any other amounts due under this Agreement at the time required, or if Client refuses to pay, ERG may (i) debit the Payroll Tax Account provided by the Client or any account at Client’s financial institution or any Affiliate owned in whole or in part by Client to pay disbursements, fees or charges, payroll taxes, or other amounts due, (ii) refuse to pay any unremitted payroll taxes, in which case the payroll tax liability will become the sole responsibility of Client, (iii) refuse to perform further services, and/or (iv) immediately terminate this Agreement. Provider may assess finance charges on any amounts owing and unpaid ten (10) days after demand. Interest charges are assessed at a rate of 1.5% per month (18% per annum) or the highest amount permitted by law, whichever is less. ERG may recover from Client any costs including, without limitation, reasonable attorneys’ fees and expert witnesses’ fees ERG may incur in connection with any termination of this Agreement or collection of amounts due hereunder.
CHANGES IN SERVICE
ERG reserves the right to change the terms, conditions, and fees for the Service at any time. ERG will attempt to provide thirty (30) days prior notice of any such changes, including fees. Client may discontinue using and terminate the Service before the change becomes effective if they do not agree to be bound by said change. If Client continues to use the Service after the change becomes effective, it will be bound by the change. The timing of an advance notice of change may be shortened when permitted or required by law.
A. ERG will notify Client when all necessary information to begin the Service has been received and the Implementation Process has been completed. It will then be the Client’s responsibility to review the information for completeness and accuracy prior to the First Payroll Processing. Client will be fully responsible for the accuracy of all information supplied by it and/or approved by it, including, without limitation any IRS or other penalties and/or interest arising therefrom and will indemnify and hold ERG harmless.
B. Client agrees that by submitting a payroll: (i) Client has reviewed and approved all Payroll Information, (ii) Client has represented and warranted to ERG that no Payroll Information submitted to ERG will result in entries that would violate the sanctions program of the Office of Foreign Assets Control of the U.S. Treasury or any other applicable laws or regulations, (iii) Client has waived and released any claim against ERG arising out of any errors in the Payroll Information which Client has not itself corrected or has not requested ERG to correct, and (iv) any subsequent request for corrections will be considered special handling and additional fees may be charged. Final audit responsibility rests with Client. ERG will not have any responsibility for verifying the accuracy of any data Client provides or directly inputs via the Client Online Account or any other method.
“Client Confidential Information” will mean all information disclosed or otherwise made available by the Client to ERG that is marked confidential and the name, social security number, address, bank, and/or wage information of Client and Client’s employees provided to ERG by Client. ERG will use reasonable care to prevent the disclosure of such Client Confidential Information to any unauthorized person or entity. ERG may disclose Client Confidential Information to its employees, affiliates, subsidiaries, agents, contractors, and to taking authorities as necessary or required to: (i) perform or offer Services; (ii) offer additional products or services; (iii) perform analysis to determine Client’s qualification to receive future services; and (iv) collect Amounts Due and may disclose Client’s payment experiences with ERG to credit reporting agencies and supply vendor references on behalf of Client. ERG may also disclose Client Confidential Information (i) to its attorneys, accountants, and auditors; and (ii) pursuant to federal, state, or local law, regulation, court order, legal process, or governmental investigation. The obligations set forth in this section will not apply to any Client Confidential Information that: (i) Client has agreed is free of any nondisclosure obligations; (ii) at the time of disclosure was free of any nondisclosure obligations; (iii) is independently developed by ERG or that ERG lawfully received, free of any nondisclosure obligations, from a third party having the right to furnish such Client Confidential Information; or (iv) is or becomes available to the public without any breach of this Agreement or unauthorized disclosure.
CLIENT ONLINE ACCOUNT
In the event Client accesses Services online or through any mobile or other electronic devices (“Client Online Account”), Client is solely responsible for (i) designating who is authorized to have access to Client’s Online Account; (ii) safeguarding all of Client’s passwords, usernames, logins or other security features used to access Client’s Online Account (“Client Online Account Access”); (iii) Client’s use of Client’s Online Account under any usernames, logins or passwords; (iv) ensuring that use of Client’s Online Account complies fully with the provisions of this Agreement; and (v) any unauthorized access, or use, of Client’s Online Account caused by Client’s actions or inactions, including, without limitation, its failure to safeguard Client Online Account or Client Online Account Access. Client is solely responsible for the maintenance and routine review of computing and electronic system usage records (i.e. log files) and the security of its own data, data storage, computing device(s), other electronic systems, and network connectivity. Client acknowledges and agrees that ERG is not liable to Client, Client’s employees or any other third party for any consequences, losses, or damages resulting from unauthorized access or use of Client Online Account as set forth in this section and shall indemnify and hold ERG harmless from such.
ERG may immediately terminate this agreement for cause. For purposes of this agreement “cause” shall mean a material breach of the terms and conditions of this Agreement by the Client. Except as otherwise set forth herein, this Agreement may be terminated by either party upon thirty (30) days’ prior written notice to the other, provided, however, the Client’s duty to maintain sufficient funds in its Payroll Account shall continue until Client’s employees and ERG are paid in full for all payrolls run by ERG. Upon termination, the Client will notify its employees thereof or will take other appropriate and reasonable action to apprise its employees of such termination or to arrange for a substitute service.
Client agrees to indemnify ERG, its employees and agents, and to hold them harmless from all loss, damages and expenses (including reasonable attorney fees) in connection with any claim which may arise out of or as a result of this Agreement or the performance of ERG, including, without limitation, any claim arising out of the use of information furnished by Client. ERG accepts both responsibility and liability for the timely report of Client payroll taxes but only based on information provided by the Client. If solely on account of negligent error or omission on the part of ERG with respect to timely reporting, Client incurs a penalty or interest charge, then ERG will pay whatever penalties and interest that result from the error. However, ERG does not assume liability for the improper payment of taxes due to incorrect claims of tax exemptions, deposit frequency, tax identification number(s) or rate(s), or deductions by the Clients or its employees. Client’s failure to comply with the terms of this Agreement terminate this contract, at the election of ERG, and releases ERG of liability for its performance under this Agreement and Client will immediately become solely responsible for any tax or wage payments, penalties, or claims. The accuracy and the integrity of the service ERG can provide is limited by the nature of information the Client provides. Therefore, ERG cannot be held liable for Client errors, wage and hour violations, sex discrimination, or other employment policies, which may violate the law. It is the Client’s obligation to check the payroll and related documents for accuracy immediately. All specifications, stored data, and programs utilized or developed by ERG in connection with the Agreement (except those furnished by Client) are and shall remain the sole property of ERG, and the Client agrees to respect the confidentiality and proprietary nature of all such information.
LIMITATION OF LIABILITY
Client specifically acknowledges and agrees that: (i) ERG cannot be held liable for any loss or damage resulting to Client or others from this Agreement or ERG’s actions or omissions hereunder unless ERG is found to have committed intentional misconduct or acted in a grossly negligent manner; (ii) ERG cannot be held liable for any actions or omissions of Client or any third parties, including, but not limited to, Client errors, wage and hour violations, sex or other types of prohibited discrimination, or other employment policies or actions which may violate the law; (iii) any liability of ERG hereunder is limited to the dollar amount actually paid to ERG by Client in the current term; (iv) ERG is not providing any legal or accounting advice or counsel; and (v) ERG may in its sole discretion outsource any of the Services provided hereunder to outside businesses or entities and that ERG is not responsible for or liable for any acts or omissions of any such outside business or entity that is not owned or controlled by ERG. ERG further acknowledges and agrees the accuracy and the integrity of the Services ERG provides is limited by the nature of information the Client provides and, therefore, Client represents and warrants that all information it provides to ERG will be true and accurate and may be relied upon by ERG and that Client will ensure the accuracy of any documents or information provided by ERG to Client immediately. All specifications, stored data, and programs utilized or developed by ERG in connection with the Agreement (except those furnished by Client) are and shall remain the sole property of ERG, and the Client agrees to respect the confidentiality and proprietary nature of all such information. ERG’s responsibility to perform Services under this Agreement will also automatically terminate should Client funds be insufficient or otherwise fail to cover all amounts due under this agreement.
During the Term, ERG may disclose your name as a customer of ERG and/or subscriber of the Service, and you hereby grant ERG the right to display your name and logo in its marketing materials and on ERG’s public website, in each case in accordance with any branding guidelines you may provide to ERG.
GENERAL TERMS AND CONDITIONS.
This Agreement supersedes all prior agreements, proposals or understandings, whether written or oral. This Agreement shall be governed by the laws of the State of South Carolina, and any action brought by either party arising out of the Agreement, shall be brought only in the State of South Carolina. It is agreed that all disputes, claims, and controversies between ERG and Client arising from this Agreement or any related documents or instruments, or otherwise, including without limitation, contract, tort, and other claims, shall be determined by a single arbitrator pursuant to the Commercial Arbitration Rules, and under the auspices, of the American Arbitration Association in South Carolina; provided, however, that no arbitrator shall have the power to enjoin or restrain any act of ERG or Client. The Agreement may be amended only in writing signed by both parties.
- To assure that Client’s inquiries are handled promptly, courteously and accurately, ERG may monitor and/or record telephone conversations and electronic communications between Client and ERG without additional prior notification to Client or Client’s employees, and Client will so advise Client’s employees who communicate with ERG by telephone or electronic means. Client’s, it’s Employees, and Agents hereby agree and consent to any such monitoring or recordings.
- Client consents to and authorizes ERG at any time to obtain credit reports about Client. The individual whose social security number is designated above consents to and authorizes ERG at any time to obtain credit reports on such individual for purposes of verifying identity and/or evaluating the creditworthiness of such individual in connection with the Service and this Agreement.
- In performing the Service, Client agrees that ERG is not acting in a fiduciary capacity for Client or its employees. In addition, neither use of the Service nor anything contained in this Agreement relieves Client of Client’s obligations under federal or state laws or regulations to retain records relating to the data contained in ERG’s tape or disk files.
- This Agreement, the documents set forth in Section 1, the Investment Analysis, any user guides (online or otherwise) and any addendum to this Agreement (hereinafter called “Contract Documents”) constitute the entire agreement between ERG and Client regarding the Service.
- Any person identified by Client in this Agreement, via the Service Site or in any certification, notice or other communication delivered to ERG may receive information, communications and notices regarding the Service, and is authorized to transact all business, make all agreements and sign and deliver all documents in connection with the Services. If the identity of such a person changes, Client will promptly notify ERG in writing. ERG will have a reasonable time after receipt of a certification, notice or other communication to continue to act on prior communications.
- Assignment. Client shall not assign this Agreement without the prior written consent of ERG. The provisions of this Agreement shall inure to the benefit of, and be binding upon, the parties and their respective successors and permitted assigns. ERG may assign this Agreement at any time in its sole discretion.
- 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. At the request of ERG, Client shall execute or re-execute original forms of this Agreement and shall deliver them to ERG. 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.
- Further Assurances. Client agrees to do such further acts and things, and to execute and deliver such additional documents agreements and instruments, as Provider may at any time and from time to time request in connection with the administration of the Service and with the administration or enforcement of this Agreement.
Client has caused this Agreement to be executed (by completing the online form, signature, electronic signature or by clicking to approve) on the date this online form is completed by a principal of Client, which by execution hereof (whether by completing the online form, signature, electronic signature, or by clicking to approve), such person represents that he or she is a principal of Client and has the authority to execute this Agreement on behalf of Client and bind Client to this Agreement.
This agreement constitutes the whole agreement between the parties and supersedes and cancels any and all previous agreements, understandings or negotiations, whether oral or written, between the Parties relating to the subject matter of this agreement. Any alteration to this agreement must be in writing and signed by both parties.
If you have any questions about this Agreement, you can reach us at 803-816-1542 or firstname.lastname@example.org